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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) June 10, 1999
Structured Asset Securities Corporation
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 333-49129 74-2440858
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
200 Vesey Street, New York, New York 10285
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 526-7000
(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On June 10, 1999, a single series of certificates, entitled LB Commercial
Mortgage Trust 1999-C1, Commercial Mortgage Pass-Through Certificates, Series
1999-C1 (the "Certificates"), was issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), entered into by and among
Structured Asset Securities Corporation (the "Registrant") and a master
servicer, a special servicer and a trustee. The Pooling and Servicing Agreement
is attached hereto as Exhibit 4.1. Certain classes of the Certificates,
designated as Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class
X (collectively, the "Underwritten Certificates") were registered under the
Registrant's registration statement on Form S-3 (no. 333-49129) and sold to
Lehman Brothers Inc. ("Lehman Brothers") and Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill"; and Merrill, together with Lehman Brothers, the
"Underwriters") pursuant to an underwriting agreement (the "Underwriting
Agreement") dated as of May 26, 1999. The Underwriting Agreement is attached
hereto as Exhibit 1.1.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired:
Not applicable.
(b) Pro forma financial information:
Not applicable.
(c) Exhibits:
Exhibit No. Description
1.1 Underwriting Agreement, dated as of May 26, 1999, between
Structured Asset Securities Corporation, as seller, and Lehman
Brothers Inc., on behalf of itself and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as underwriters.
4.1 Pooling and Servicing Agreement, dated as of June 1, 1999,
among Structured Asset Securities Corporation, as depositor,
First Union National Bank, as master servicer, GMAC Commercial
Mortgage Corporation, as special servicer, and Norwest Bank
Minnesota, National Association, as trustee.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: June 10, 1999
STRUCTURED ASSET SECURITIES
CORPORATION
By: \s\ James Blakemore
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Name: James Blakemore
Title: Vice President
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EXHIBIT INDEX
The following exhibits are filed herewith:
Exhibit No. Page No.
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1.1 Underwriting Agreement, dated as of May 26,
1999, between Structured Asset Securities
Corporation, as seller, and Lehman Brothers
Inc., on behalf of itself and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as
underwriters.
4.1 Pooling and Servicing Agreement, dated as of
June 1, 1999, among Structured Asset Securities
Corporation, as depositor, First Union National
Bank, as master servicer, GMAC Commercial
Mortgage Corporation, as special servicer, and
Norwest Bank Minnesota, National Association,
as trustee.
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Exhibit 1.1
STRUCTURED ASSET SECURITIES CORPORATION
UNDERWRITING AGREEMENT
As of May 26, 1999
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Structured Asset Securities Corporation, a Delaware corporation (the
"Company"), proposes to cause the issuance of, and sell to the underwriters
named in Schedule I hereto (the "Underwriters"; provided, however, that if you
are the only underwriter named in Schedule I, then the terms "Underwriter" and
"Underwriters" shall refer solely to you), for whom you act as representative
(in such capacity, the "Representative"), the mortgage pass-through certificates
that are identified on Schedule II attached hereto (the "Certificates"). The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Company and consisting primarily of a
segregated pool (the "Mortgage Pool") of multifamily and commercial mortgage
loans (the "Mortgage Loans"). Certain of the Mortgage Loans will be acquired by
Company from Lehman Brothers Holdings Inc., doing business as Lehman Capital, a
division of Lehman Brothers Holdings Inc. ("Holdings"), pursuant to a mortgage
loan purchase agreement, dated as of the date hereof (the "Holdings Mortgage
Loan Purchase Agreement"), between Company and Holdings. The other Mortgage
Loans will be acquired by Company from LUBS Inc. ("LUBS" and, together with
Holdings, the "Mortgage Loan Sellers"), pursuant to a mortgage loan purchase
agreement dated as of the date hereof (the "LUBS Mortgage Loan Purchase
Agreement"; and, together with the Holdings Mortgage Loan Purchase Agreement,
the "Mortgage Loan Purchase Agreements"), between the Company and LUBS. The
Certificates will be issued under a Pooling and Servicing Agreement to be dated
as of June 1, 1999 (the "Pooling and Servicing Agreement"), among the Company as
depositor, Norwest Bank Minnesota, National Association as trustee (the
"Trustee"), First Union National Bank as master servicer (the "Master Servicer")
and GMAC Commercial Mortgage Corporation as special servicer (the "Special
Servicer"). The Certificates and the Mortgage Loans are described more fully in
the Prospectus (as defined below), which the Company has furnished to the
Underwriters. Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series (the "Private Certificates") will be privately
placed through the Underwriters with a limited number of institutional investors
as described in the Private Placement Memorandum dated the date hereof that
relates to the
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Privately Offered Certificates (together with all exhibits and annexes thereto,
the "Memorandum").
1. Representations and Warranties. The Company represents, warrants and
agrees that:
(a) A registration statement on Form S-3 (No. 333-49129) with respect to
the Certificates has been prepared by the Company and filed with the Securities
and Exchange Commission (the "Commission"), and complies as to form in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 Act. As
used in this Underwriting Agreement (this "Agreement" or the "Underwriting
Agreement"), (i) "Registration Statement" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "Basic Prospectus" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"Prospectus" means the Basic Prospectus, together with the prospectus supplement
specifically relating to the Certificates (the "Prospectus Supplement"), as most
recently filed with, or mailed for filing to, the Commission pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (iv) "Preliminary Prospectus"
means any preliminary form of the Prospectus that has heretofore been filed
pursuant to paragraph (b) of Rule 424 of the 1933 Act. The aggregate principal
amount of the Certificates does not exceed the remaining amount of
mortgage-backed securities that may be registered under the Registration
Statement as of the date hereof.
(b) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations of the Commission
thereunder; and the Registration Statement and the Prospectus do not, and (in
the case of any amendment or supplement to any such document filed with the
Commission after the date as of which this representation is being made) will
not, contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company makes no
representation or warranty as to (i) information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for inclusion therein or (ii) any information in any Computational
Materials and ABS Term Sheets (each as defined in Section 4) incorporated into
the Registration Statement by the filing thereof pursuant to Section 5(j).
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease or operate its properties and to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement; and
the Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason
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of the ownership or leasing of property or the conduct of business.
(d) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the
date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Prospectus Supplement is filed with the Commission, and as of the Closing Date,
there has not and will not have been (i) any request by the Commission for any
further amendment to the Registration Statement or the Prospectus or for any
additional information, (ii) any issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose or (iii) any notification with respect
to the suspension of the qualification of the Certificates for sale in any
jurisdiction or any initiation or threat of any proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and delivered by the
Company, and the Pooling and Servicing Agreement, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed and
delivered by the Company; and this Agreement constitutes, and the Pooling and
Servicing Agreement, when so executed and delivered will constitute, legal,
valid and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by (i) bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(ii) general principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of such agreement or the Pooling and Servicing
Agreement that purport to provide indemnification from securities law
liabilities.
(f) As of the Closing Date, the Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the respective descriptions
thereof contained in the Prospectus. As of the Closing Date, the Certificates
will be duly and validly authorized and, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement to the Underwriters against payment therefor as provided herein, will
be duly and validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(h) The Company is not in violation of its certificate of incorporation or
by-laws or in default under any agreement, indenture or instrument the effect of
which violation or default would be material to the Company or which violation
or default would have a material adverse affect on the performance of its
obligations under this Agreement or the Pooling and Servicing Agreement. Neither
the issuance and sale of the Certificates, nor the execution and delivery by the
Company of this Agreement or the Pooling and Servicing Agreement, nor the
consummation by the Company of any of the transactions herein or therein
contemplated, nor compliance by the
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Company with the provisions hereof or thereof, does or will conflict with or
result in a breach of any term or provision of the certificate of incorporation
or by-laws of the Company or conflict with, result in a breach, violation or
acceleration of, or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Company is a party or by which it or
any of its material assets is bound, or any statute, order or regulation
applicable to the Company of any state or Federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the Company.
(i) There is no action, suit or proceeding against the Company pending,
or, to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement, (iii) that might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement or the Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Prospectus.
(j) There are no contracts, indentures or other documents of a character
required by the 1933 Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance or
sale of the Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Certificates by the Underwriters, and except any recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(m) Any taxes, fees and other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement and the Pooling
and Servicing Agreement or the issuance and sale of the Certificates (other than
such federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the Closing Date.
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(n) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance.
(o) Neither the Company nor the Trust Fund is, and neither the issuance
and sale of the Certificates in the manner contemplated by the Prospectus nor
the activities of the Trust Fund pursuant to the Pooling and Servicing Agreement
will cause the Company or the Trust Fund to be, an "investment company" or under
the control of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(p) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
will constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the Underwriters or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with
any intent to hinder, delay or defraud any of the creditors of the Company.
(q) At the Closing Date, the respective classes of Certificates shall have
been assigned ratings no lower than those set forth in Schedule II hereto by the
nationally recognized statistical rating organizations identified in Schedule II
hereto (the "Rating Agencies").
(r) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(s) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal or notional amount of each
class of the Certificates set forth opposite each such Underwriter's name in
Schedule I hereto.
The purchase price for each class of the Certificates as a
percentage of the aggregate principal or notional amount thereof as of the
Closing Date is set forth in Schedule II hereto. There will be added to the
purchase price of the Certificates to be purchased hereunder an amount equal to
interest accrued thereon pursuant to the terms thereof from June 1, 1999 to but
excluding the Closing Date.
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3. Payment and Delivery. The closing for the purchase and sale of the
Certificates hereunder shall occur at the offices of Sidley & Austin, 875 Third
Avenue, New York, New York 10022, at 10:00 a.m. New York City time, on June 10,
1999 or at such other location, time and date as shall be mutually agreed upon
by the Company and the Representative (such time and date of closing, the
"Closing Date"). Delivery of the Certificates shall be made through the Same Day
Funds Settlement System of the Depository Trust Company ("DTC"). Payment shall
be made to the Company in immediately available Federal funds wired to such bank
as may be designated by the Company (or by such other method of payment as may
be mutually acceptable to the parties hereto), against delivery of the
Certificates. The Certificates will be made available for examination by the
Representative not later than 3:00 p.m. New York City time on the last business
day prior to the Closing Date.
References herein, including, without limitation, in the Schedules hereto,
to actions taken or to be taken following the Closing Date with respect to any
Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
4. Offering by the Underwriters.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105 has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below);
accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide (and acknowledge that they
have prepared and provided) to prospective investors certain Computational
Materials or ABS Term Sheets in connection with the offering of the
Certificates. In this regard, each Underwriter represents and warrants to, and
covenants with, the Company that:
(i) Such Underwriter has complied and shall comply with the
requirements of the no-action letter, dated May 20, 1994, issued by the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody &
Co. Incorporated and Kidder Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in response
to the request of the Public Securities Association, dated May 25, 1994
(collectively, the "Kidder/PSA Letter"), and the requirements of the
no-action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together with the
Kidder/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have the
meaning
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given such term in the No-Action Letters and "ABS Term Sheets,"
"Structural Term Sheets" and "Collateral Term Sheets" shall have the
meanings given such terms in the PSA Letter.
(iii) All such Computational Materials and ABS Term Sheets in
respect of the Certificates provided to prospective investors by such
Underwriter have borne or shall bear, as the case may be, a legend in a
form previously approved by the Company or its counsel.
(iv) Such Underwriter has not distributed and shall not distribute
any such Computational Materials or ABS Term Sheets in respect of the
Certificates, the forms and methodology of which are not in accordance
with this Agreement. Such Underwriter has provided or shall provide, as
the case may be, to the Company, for filing pursuant to a Current Report
on Form 8-K as provided in Section 5(j), copies (in such format as
required by the Company) of all such Computational Materials and ABS Term
Sheets. Such Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be
filed. All Computational Materials and ABS Term Sheets described in this
paragraph (b)(iv) must be or must have been, as applicable, provided to
the Company (A) in paper or electronic format suitable for filing with the
Commission and (B) not later than 10:00 a.m. (New York City time) on a
business day that is not less than one business day before filing thereof
is or was, as the case may be, required pursuant to the terms of the
No-Action Letters.
(v) All information included in any such Computational Materials and
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter has been or shall be generated based on
substantially the same methodology and assumptions as are used to generate
the information in the Prospectus Supplement as set forth therein;
provided that such Computational Materials and ABS Term Sheets may include
information based on alternative methodologies or assumptions if specified
therein. If any Computational Materials or ABS Term Sheets in respect of
the Certificates provided to prospective investors by such Underwriter
were based on assumptions with respect to the Mortgage Pool that differ
from the Prospectus Supplement in any material respect or on Certificate
structuring assumptions (except in the case of Computational Materials
when the different structuring terms were hypothesized and so described)
that were revised in any material respect prior to the printing of the
Prospectus, then to the extent that it has not already done so, such
Underwriter shall immediately inform the Company and, upon the direction
of the Company, and if not corrected by the Prospectus, shall prepare
revised Computational Materials and ABS Term Sheets, as the case may be,
based on information regarding the Mortgage Pool and Certificate
structuring assumptions consistent with the Prospectus, circulate such
revised Computational Materials and ABS Term Sheets to all recipients of
the preliminary versions thereof, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to paragraph (b)(iv) above.
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(vi) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that the Company will file
Computational Materials or ABS Term Sheets that contain a material error
or, when read together with the Prospectus, a material omission, if
clearly marked (A) "superseded by materials dated [specify date]" and
accompanied by corrected Computational Materials or ABS Term Sheets that
are marked "material previously dated [specify date], as corrected", or
(B) if the material error or omission is to be corrected in the
Prospectus, "superseded by materials contained in the Prospectus." If,
within the period during which the Prospectus relating to the Certificates
is required to be delivered under the 1933 Act and the rules and
regulations of the Commission thereunder, any Computational Materials or
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter are determined, in the reasonable judgment
of the Company or such Underwriter, to contain a material error or, when
read together with the Prospectus, a material omission, then (unless the
material error or omission was corrected in the Prospectus) such
Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected Computational
Materials or ABS Term Sheets to all recipients of the prior versions
thereof, and shall deliver copies of such corrected Computational
Materials or ABS Term Sheets (marked, "as corrected") to the Company for
filing with the Commission in a subsequent Current Report on Form 8-K
submission (subject to the Company's obtaining an accountant's comfort
letter in respect of such corrected Computational Materials and ABS Term
Sheets, which shall be at the expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented, as of
the Closing Date, that except for Computational Materials and/or ABS Term
Sheets provided to the Company pursuant to or as contemplated by paragraph
(b)(iv) above, such Underwriter did not provide any prospective investors
with any information in written or electronic form in connection with the
offering of the Certificates that is required to be filed with the
Commission in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by either
Underwriter to the Company of all Computational Materials and ABS Term
Sheets in respect of the Certificates required to be delivered in
accordance with or as contemplated by paragraph (b)(iv) above, the Company
shall have the right to delay the release of the Prospectus to investors
or to the Underwriters, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5(j) to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(ix) Computational Materials and ABS Term Sheets may be distributed
by such Underwriter through electronic means in accordance with SEC
Release No. 33-7233 (the "Release").
(c) Each Underwriter further agrees that it shall promptly provide the
Company with such information as to matters of fact as the Company may
reasonably request to enable it to
<PAGE>
comply with its reporting requirements with respect to each class of
Certificates to the extent such information can in the good faith judgment of
such Underwriter be determined by it.
5. Covenants of the Company. The Company covenants with the Underwriters
that:
(a) The Company will furnish promptly to the Representative and counsel
for the Underwriters one signed copy of the Registration Statement as originally
filed with the Commission, and each amendment or supplement thereto filed prior
to the date of this Agreement or relating to or covering the Certificates, and a
copy of each Prospectus filed with the Commission, including all consents and
exhibits filed therewith.
(b) The Company will deliver promptly to any Underwriter such number of
conformed copies of the Registration Statement and of each amendment or
supplement thereto filed prior to the date of this Agreement or relating to or
covering the Certificates and, during such period following the date of this
Agreement in which any Prospectus is required by law to be delivered, such
number of copies of each Prospectus, as such Underwriter may reasonably request.
(c) The Company will file promptly with the Commission, during such period
following the date of the this Agreement in which any Prospectus is required by
law to be delivered, any amendment or supplement to the Registration Statement
or any Prospectus relating to or covering the Certificates that may, in the
judgment of the Company or the Representative, be required by the 1933 Act and
the rules and regulations of the Commission thereunder or requested by the
Commission and approved by the Representative.
(d) Prior to filing with the Commission during the period referred to in
paragraph (c) above any amendment or supplement to the Registration Statement or
any Prospectus relating to or covering the Certificates, the Company will
furnish a copy thereof to the Representative and to counsel for the
Underwriters, and the Company will not file any such amendment or supplement to
which the Underwriters shall reasonably object.
(e) The Company will advise the Representative promptly (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Certificates becomes effective, (ii) of any request or proposed request by
the Commission for an amendment or supplement to the Registration Statement or
to any Prospectus (insofar as the amendment or supplement relates to or covers
the Certificates) or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any Prospectus or the initiation
or threat of any such stop order proceeding, (iv) of receipt by the Company of
any notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening of any event that makes
untrue any statement of a material fact made in the Registration Statement or
any Prospectus or that
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requires the making of a change in the Registration Statement or any Prospectus
in order to make any material statement therein not misleading.
(f) If, during the period referred to in paragraph (c) above, the
Commission issues an order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the lifting
of that order at the earliest possible time.
(g) [Reserved.]
(h) The Company will endeavor to qualify the Certificates for offer and
sale under the securities laws of such jurisdictions as the Representative may
reasonably request, provided, however, that this Section 5(h) shall not obligate
the Company to file any general consent to service of process or to qualify to
do business in any jurisdiction or as a dealer in securities in any jurisdiction
in which it is not so qualified.
(i) The Company will pay or cause to be paid (i) the costs incident in the
preparation, printing and filing under the 1933 Act of the Registration
Statement and any amendments thereof and supplements and exhibits thereto; (ii)
the costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, each Prospectus and any amendment or supplement to the
Prospectus as provided in this Agreement; (iii) the costs of printing and
distributing the Pooling and Servicing Agreement; (iv) the costs of filings, if
any, with the National Association of Securities Dealers, Inc.; (v) fees paid to
the Rating Agencies in connection with the rating of the Certificates; (vi) the
fees and expenses of qualifying the Certificates, under the securities laws of
the several jurisdictions as provided in Section 5(h) hereof, and of preparing
and printing, if so requested by the Representative, a preliminary blue sky
survey and legal investment survey concerning the legality of the Certificates
as an investment (including fees and disbursements of counsel to the
Underwriters in connection therewith); and (vii) any other costs and expenses
incident to the performance of the Company's obligations under this Agreement;
provided, however, that, except as provided above in this Section 5(i) or in
Section 7, each Underwriter shall pay its own costs and expenses, including the
fees and expenses of its counsel, any transfer taxes on the Certificates that it
may sell and the expenses of advertising any offering of the Certificates made
by such Underwriter.
(j) The Company will file any documents and any amendments thereof as may
be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
of the Commission under the 1933 Act and the 1934 Act, including, but not
limited to, the filing with the Commission pursuant to a Current Report on Form
8-K, subject to Section 4, all Computational Materials and ABS Term Sheets in
respect of the Certificates furnished by either Underwriter and identified by it
as such. Subject to compliance by the Underwriters with Section 4(b)(iv), the
Company will file all such Computational Materials and ABS Term Sheets within
the time period allotted for such filing pursuant to the No-Action Letters.
Subject to compliance by the Underwriters with Section 4(b)(iv), the Company
represents and warrants that, to the extent required by the No-Action Letters,
the Company has timely filed with the Commission any Collateral Term Sheets
<PAGE>
previously delivered to it as contemplated by Section 4(b)(iv).
6. Conditions to the Obligations of the Underwriters. The obligation of
the Underwriters hereunder to purchase the Certificates shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date, as
of the date the Prospectus Supplement or any supplement thereto is filed with
the Commission prior to the Closing Date and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates delivered
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to satisfaction, as of the Closing Date, of the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the 1933 Act.
(b) The Company shall have delivered to the Underwriters a certificate of
the Company, signed by an authorized officer of the Company and dated the
Closing Date, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the Company a
good standing certificate from the Secretary of State of the State of Delaware,
dated not earlier than 30 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements or any other document
or certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, in the Pooling and Servicing Agreement or in
the Mortgage Loan Purchase Agreements, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (ii) no event (including, without limitation, any act or
omission on the part of the Company) has occurred since the date of the good
standing certificate referred to in paragraph (c) above which has affected the
good standing of the Company under the laws of the State of Delaware. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the
<PAGE>
resolutions of the Company and any required shareholder consent relating to the
transactions contemplated in this Agreement, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements.
(e) The Underwriters shall have received from Sidley & Austin, special
counsel for the Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Registration Statement and any post-effective amendments
thereto have become effective under the 1933 Act.
(ii) To the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and not
withdrawn, and no proceedings for that purpose have been instituted or
threatened and not terminated.
(iii) The Registration Statement, each post-effective amendment
thereto (if any), the Basic Prospectus and the Prospectus Supplement, as
of their respective effective or issue dates (other than the financial
statements, schedules and other financial and statistical information
contained therein or omitted therefrom and other than information
incorporated therein by reference, as to which such counsel need express
no opinion), complied as to form in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations of
the Commission thereunder.
(iv) To the best knowledge of such counsel, there are no material
contracts, indentures or other documents relating to the Certificates of a
character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto.
(v) The Mortgage Loan Purchase Agreements and the Pooling and
Servicing Agreement each constitute a valid, legal, binding and
enforceable agreement of the Company, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally, to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or
at law and public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability
of the provisions of such agreement that purport to provide
indemnification from securities law liabilities.
(vi) The Certificates, when duly and validly executed, authenticated
and delivered in accordance with the Pooling and Servicing Agreement and
paid for in accordance with this Agreement, will be duly and validly
issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
<PAGE>
(vii) The statements set forth in the Prospectus Supplement under
the headings "Description of the Offered Certificates" and "Servicing of
the Mortgage Loans" and in the Basic Prospectus under the headings
"Description of the Securities", "Servicing of Mortgage Loans" and "The
Trust Agreement", insofar as such statements purport to summarize certain
material provisions of the Certificates and the Pooling and Servicing
Agreement, are accurate in all material respects.
(viii) The statements set forth in the Prospectus Supplement under
the headings "Federal Income Tax Consequences", "Certain ERISA
Considerations" and "Legal Investment" and in the Basic Prospectus under
the headings "Federal Income Tax Considerations" and "Legal Investment",
to the extent that they constitute matters of federal law or legal
conclusions with respect thereto, while not discussing all possible
consequences of an investment in the Certificates to all investors,
provide a fair and accurate summary of such matters and conclusions set
forth under such headings.
(ix) Upon initial issuance, the Class A-1, Class A-2, Class B and
Class X Certificates will be "mortgage related securities", as defined in
Section 3(a)(41) under the 1934 Act.
(x) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
Fund is not required to be registered under the 1940 Act.
(xi) No consent, approval, authorization or order of any State of
New York or federal court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated herein or
in the Pooling and Servicing Agreement, except (A) such as have been
obtained under the 1933 Act, (B) such as may be required under state
securities laws or the "blue sky" laws of any jurisdiction in connection
with the offer and sale of the Certificates by the Underwriters, as to
which such counsel need express no opinion; and (C) any recordation of the
assignments of the Mortgage Loans pursuant to the Pooling and Servicing
Agreement that has not yet been completed.
(xii) Assuming compliance with all provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, REMIC I, REMIC II
and REMIC III will each qualify as a real estate mortgage investment
conduit (a "REMIC") under the Internal Revenue Code of 1986 (the "Code"),
the Class R-I Certificates will be the sole class of "residual interests"
in REMIC I, the Class R-II Certificates will be the sole class of
"residual interests" in REMIC II, the Class A-1, Class A-2, Class B, Class
C, Class D, Class E, Class X, Class F, Class G, Class H, Class J, Class K,
Class L and Class M Certificates will evidence the "regular interests" in
REMIC III, and the Class R-III Certificates will be the sole class of
"residual interests" in REMIC III.
(xiii) The portion of the Trust Fund consisting of the Grantor Trust
(as defined in the Prospectus Supplement) will be classified as a grantor
trust under subpart E, part I
<PAGE>
of subchapter J of the Internal Revenue Code of 1986.
In giving its opinions pursuant to this Section 6(e), Sidley & Austin,
special counsel to the Company, shall additionally state that, based on
conferences and telephone conversations with representatives of the Company,
Holdings, LUBS, the Master Servicer, the Special Servicer, the Trustee and their
respective counsel, and (with limited exception) without having reviewed any of
the mortgage notes, mortgages or other documents relating to the Mortgage Loans
or made any inquiry of any originator of any Mortgage Loan not referenced above,
nothing has come to such special counsel's attention that would lead it to
believe that the Prospectus (other than any accounting, financial or statistical
information included therein or omitted therefrom, and other than any
information incorporated therein by reference, as to which such counsel has not
been requested to comment), at the date of the Prospectus Supplement or at the
Closing Date, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In giving its opinions pursuant to this Section 6(e), Sidley & Austin,
special counsel to the Company, may express its reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials and, further, may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto. Such opinion may be qualified as an opinion
only on the General Corporation Law of the State of Delaware, the laws of the
State of New York and the federal law of the United States.
(f) The Underwriters shall have received copies of all legal opinion
letters delivered by Sidley & Austin to the Rating Agencies in connection with
the issuance of the Certificates, accompanied in each case by a letter signed by
Sidley & Austin stating that the Underwriters may rely on such opinion letter as
if it were addressed to them as of date thereof.
(g) The Underwriters shall have received from Christopher Epes, Esq.,
counsel for the Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has the
corporate power to enter into and perform its obligations under each of
the Mortgage Loan Purchase Agreements, this Agreement and the Pooling and
Servicing Agreement.
(ii) Each of the Mortgage Loan Purchase Agreements, this
Agreement and the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Company.
(iii) The execution, delivery and performance of the Pooling and
Servicing
<PAGE>
Agreement, this Agreement and the Mortgage Loan Purchase Agreements by
the Company, and the consummation of the transactions contemplated
hereby or thereby, to such counsel's knowledge, do not and will not
result in a material breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or instrument known to such counsel to which the Company is
a party, nor will such actions result in any violation of the provisions
of the articles of incorporation or by-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company (except for such conflicts,
breaches, violations and defaults as would not have a material adverse
effect on the ability of the Company to perform its obligations under the
Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements).
(iv) to such counsel's knowledge without any independent
investigation, no consent, approval, authorization or order of or with any
court or governmental agency or body of the United States or any other
jurisdiction is required for the transactions contemplated by the Pooling
and Servicing Agreement, this Agreement and the Mortgage Loan Purchase
Agreements, except such consents, approvals, authorizations,
registrations or qualifications as have been previously obtained or the
failure of which to obtain would not have a material adverse effect on the
performance by the Company of its obligations under the Pooling and
Servicing Agreement, this Agreement and the Mortgage Loan Purchase
Agreements.
In giving his opinions required pursuant to this Section 6(g),
Christopher Epes, Esq., counsel to the Company, may express his reliance as
to factual matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials and, further, may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Company.
Such opinion may be qualified as an opinion only on the General Corporation Law
of the State of Delaware, the laws of the State of New York and the federal law
of the United States.
(h) The Underwriters shall have received from Deloitte & Touche, LLP
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Representative and counsel for the Underwriters, to
the following effect:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the captions "Summary of the Prospectus Supplement," "Description of
the Mortgage Pool" and "Yield and Maturity Considerations" and on Annex
A-1, Annex A-2, Annex A-3 and Annex A-4 agrees with the data sheet or
computer tape prepared by or on behalf of the Mortgage Loan Sellers,
unless non-material deviations are otherwise noted in such letter; and
<PAGE>
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and found
such data and information to be in agreement in all material respects,
unless non-material deviations are otherwise noted in such letter.
(i) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer and the Trustee, a favorable opinion of
counsel, dated the Closing Date, addressing the valid existence of such party
under the laws of the jurisdiction of its organization, the due authorization,
execution and delivery of the Pooling and Servicing Agreement by such party and,
subject to the same limitations as set forth in Section 6(e)(v), the
enforceability of the Pooling and Servicing Agreement against such party.
Counsel rendering each such opinion may express its reliance as to factual
matters on representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of the parties
to the Pooling and Servicing Agreement and on certificates furnished by public
officials and, further, may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered. Such
opinion may be qualified as an opinion only on the laws of the State of New
York, the laws of the jurisdiction of organization for the party on behalf of
which such opinion is being rendered and the federal law of the United States.
(j) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by Holdings in connection
with the sale by Holdings of its Mortgage Loans to the Company, pursuant to the
Holdings Mortgage Loan Purchase Agreement.
(k) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by LUBS in connection with
the sale by LUBS of its Mortgage Loans to the Company, pursuant to the LUBS
Mortgage Loan Purchase Agreement.
(l) The Underwriters and counsel to the Underwriters shall have been
furnished with such other documents and opinions as they may reasonably require,
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained.
(m) The Certificates shall have been assigned ratings no less than those
set forth on Schedule II and such ratings shall not have been rescinded.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
the Company is in material breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time
<PAGE>
prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform in all material respects any agreement herein or comply in all material
respects with any provision hereof, other than by reason of a default by an
Underwriter, the Company will reimburse the Underwriters upon demand, for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by any of them in connection with the proposed
purchase and sale of the Certificates.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus or any Preliminary Prospectus Supplement (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representative on
behalf of the Underwriters), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any such
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information (as
<PAGE>
specified in Section 8(b) below) furnished to the Company by the Underwriters
expressly for use in the Registration Statement (or any amendment thereto) or in
the Basic Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto); and provided, further, that
the foregoing indemnity shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in any Computational Materials or ABS Term
Sheets (or amendments thereof or supplements thereto) in respect of the
Certificates delivered to prospective investors by any Underwriter and furnished
to the Company by such Underwriter pursuant to Section 4(b)(iv) and made a part
of the Registration Statement or incorporated by reference in any Preliminary
Prospectus or the Prospectus, except to the extent that any such untrue
statement or omission results from an error (a "Collateral Error") in the
information regarding the characteristics of the Mortgage Loans, Mortgaged
Properties and/or Borrowers furnished by the Company to the Underwriters in
writing for use in such Computational Materials or ABS Term Sheets (and, if the
Company has notified such Underwriter in writing of such Collateral Error or
provided in written or electronic form information superseding or correcting
such Collateral Error (in any such case, a "Corrected Collateral Error") prior
to the time of confirmation of sale to the person that purchased the
Certificates that are the subject of any such loss, liability, claim, damage or
expense, or action in respect thereof, such Underwriter has failed to deliver to
such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting information is contained in the Prospectus, has failed
to deliver to such person such Prospectus) prior to confirmation of such sale to
such person); and provided, further, that the foregoing indemnity with respect
to any Preliminary Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) with respect to
any loss, liability, claim, damage or expense arising out of the claims of any
particular person that purchased Certificates if the untrue statement or
omission or alleged untrue statement or omission made in such Preliminary
Prospectus upon which such claims are based is eliminated or remedied in the
Prospectus and, if required by law, a copy of the Prospectus shall not have been
furnished to such person at or prior to the written confirmation of the sale of
such Certificates to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 8(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Prospectus or any Preliminary Prospectus (or any amendment thereof or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for use in the Prospectus
or such Preliminary Prospectus (or any amendment or supplement thereto); or made
in any Computational Materials or ABS Term Sheets in respect of the Certificates
furnished by such Underwriter to prospective investors; provided, however, that
the foregoing indemnity shall not apply to any such loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
in any such Computational Materials or ABS Term Sheets resulting from a
Collateral Error, except to the extent that such Collateral Error became a
Corrected Collateral Error prior to the time of confirmation of sale to the
person
<PAGE>
that purchased the Certificates that are the subject of any such loss,
liability, claim, damage or expense, or action in respect thereof, and such
Underwriter failed to deliver to such person corrected Computational Materials
or ABS Term Sheets (or, if the superseding or correcting information is
contained in the Prospectus, failed to deliver to such person such Prospectus)
prior to confirmation of such sale to such person. It is hereby acknowledged
that (i) the statements set forth in the first, second and third sentences of
the last paragraph on the cover of the Prospectus Supplement, and (ii) the
statements in the first sentence of each of the second and fourth paragraphs
under the caption "Method of Distribution" in the Prospectus Supplement,
constitute the only written information furnished to the Company by the
Underwriters expressly for use in the Prospectus or any Preliminary Prospectus
(or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from its or their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. Unless it shall assume the
defense of any proceeding, an indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. If an indemnifying
party assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such settlement
provides for the unconditional release of the indemnified party in connection
with all matters relating to the proceeding that have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party.
9. Contribution. In order to provide for just and equitable contribution
in
<PAGE>
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and each Underwriter shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company or
any Underwriter, as incurred, in such proportions that each Underwriter is
responsible for that portion represented by the percentage that the underwriting
discounts and commissions pertaining to the Certificates underwritten by it
bears to the aggregate of the initial public offering prices of the Certificates
and the Company is responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation; and provided, further, that in
no event shall any Underwriter be obligated to contribute more than an amount
equal to the underwriting discounts and commissions pertaining to the
Certificates underwritten by it. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters, or by or on behalf of
the Company, or by or on behalf of any of the controlling persons and officers
and directors referred to in Sections 8 and 9, and shall survive delivery of the
Certificates to the Underwriters.
11. Substitution of Underwriters. (a) If any Underwriter shall fail to
take up and pay for the amount of the Certificates agreed by such Underwriter to
be purchased under this Agreement, upon tender of such Certificates in
accordance with the terms hereof, and the amount of the Certificates not
purchased does not aggregate more than 10% of the total amount of the
Certificates set forth in Schedule I hereof (based on aggregate purchase price),
the remaining Underwriters shall be obligated to take up and pay for the
Certificates that the withdrawing or defaulting Underwriter agreed but failed to
purchase.
(b) If any Underwriter shall fail to take up and pay for the amount
of the Certificates agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender of
such Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule I hereto (based on aggregate purchase price),
and arrangements satisfactory to the remaining Underwriters and the Company for
the purchase of such Certificates by other persons are not made within 36 hours
thereafter, this Agreement shall terminate. In the event of any such termination
the Company shall not be under any liability to
<PAGE>
any Underwriter (except to the extent provided in Section 5(i) and Sections 8
and 9 hereof) nor shall any Underwriter (other than an Underwriter who shall
have failed, otherwise than for some reason permitted under this Agreement, to
purchase the amount of the Certificates such Underwriter agreed to purchase
hereunder) be under any liability to the Company (except to the extent provided
in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve any
Defaulting Underwriter from any liability it may have to the Company or any
other Underwriter by reason of its failure to take up and pay for Certificates
as agreed by such Defaulting Underwriter.
12. Termination of Agreement; Survival.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the reasonable judgment of the Representative,
impracticable to market the Certificates or to enforce contracts for the sale of
the Certificates, or (iii) if trading generally on the New York Stock Exchange
has been suspended, or if a banking moratorium has been declared by either
federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 12, such
termination shall be without liability of any party to any other party, except
as provided in Section 11.
(c) The provisions of Section 5(i) regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
13. Notices. Any notice by the Company to the Underwriters shall be
sufficient if given in writing or by telegraph to the addresses set forth on
Schedule I hereto (or, in the case of any Underwriter, at such other address as
may be furnished by such Underwriter to the Company in accordance with this
Section 13); and any notice by the Underwriters to the Company shall be
sufficient if given in writing or by telegraph addressed to the Company at 200
Vesey Street, New York, New York 10285, attention of the President.
14. Successors. This Agreement shall be binding upon the Underwriters, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the indemnity agreement of the Underwriters contained in Section 8 hereof shall
be deemed to be also for the benefit of directors of the Company, officers of
the Company who have signed the Registration Statement and any person
controlling the Company and the indemnity agreement of the Company contained in
Section 8 shall be deemed to be also for the benefit of any person controlling
the Underwriters. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section, any legal
or equitable right, remedy or claim under or in
<PAGE>
respect of this Agreement or any provision contained herein.
15. Business Day. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
16. Applicable Law. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, applicable to
contracts made and to be performed entirely in said State.
17. Counterparts. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriters.
Very truly yours,
STRUCTURED ASSET SECURITIES
CORPORATION
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
LEHMAN BROTHERS INC.
By:
Name:
Title:
<PAGE>
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
- ---------------------------- ----- ----------------------------
Lehman Brothers Inc. A-1 402,000,000
200 Vesey Street
New York, New York 10285
Attention: James C. Blakemore
A-2 802,800,000
B 90,854,000
C 86,904,000
D 63,202,000
E 31,602,000
X 1,580,066,327(1)
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
250 Vesey Street
New York, New York, 10281
Attention: Bruce Ackerman
- -----------------
(1) Notional Amount
<PAGE>
SCHEDULE II
Underwriting Agreement, dated as of May 26, 1999.
Title and Description of the Certificates:
Lehman Brothers Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, Class A-1, Class A-2, Class B,
Class C, Class D, Class E and Class X.
Cut-off Date: As defined in the Prospectus
Expected Closing Date: June 10, 1999
CERTIFICATES
<TABLE>
<CAPTION>
============================================================================================================================
Class A-1 Class A-2 Class B Class C Class D Class E Class X
--------- --------- ------- ------- ------- ------- -------
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Initial Aggregate 402,000,000 802,800,000 90,854,000 86,904,000 63,202,000 31,602,000 1,580,066,327(1)
Certificate Principal
Amount or Certificate
Notional Amount
- ----------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 6.410% 6.780% 6.930% 7.020% 7.020% 7.020% 0.693%
- ----------------------------------------------------------------------------------------------------------------------------
Rating(2) Aaa/AAA Aaa/AAA Aa2/AA A2/A Baa2/BBB Baa3/BBB- Aaa/AAA
- ----------------------------------------------------------------------------------------------------------------------------
Purchase Price(3)
============================================================================================================================
</TABLE>
- ---------------
(1) Notional amount.
(2) By Moody's Investors Service, Inc. and Duff & Phelps Credit Rating Co.,
respectively.
(3) Expressed as a percentage of the initial aggregate stated principal amount
or notional principal amount, as applicable, of each class of
Certificates. The Purchase Price for each class of Certificates will
include accrued interest at the initial Pass-Through Rate therefor on the
initial aggregate stated principal amount or notional principal amount
thereof from June 1, 1999 to but not including the Closing Date.
<PAGE>
Exhibit 4.1
Execution Copy
STRUCTURED ASSET SECURITIES CORPORATION
Depositor
FIRST UNION NATIONAL BANK
Master Servicer
and
GMAC COMMERCIAL MORTGAGE CORPORATION
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1999
------------------------------
$1,580,066,326
LB Commercial Mortgage Trust 1999-C1
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms................................................5
SECTION 1.02. General Interpretive Principles.............................57
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans.............58
SECTION 2.02. Acceptance of Trust Fund by Trustee.........................59
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties............61
SECTION 2.04. Representations, Warranties and Covenants of the Depositor..62
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.......78
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.......................................79
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates..............................................79
SECTION 2.08. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC III by Trustee........................79
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates..............................................79
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans........................81
SECTION 3.02. Collection of Mortgage Loan Payments........................82
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts......................83
SECTION 3.04. Custodial Account, Defeasance Deposit Account,
Collection Account........................................86
SECTION 3.05. Permitted Withdrawals From the Custodial Account,
the Collection Account and the Interest Reserve Account...90
SECTION 3.06. Investment of Funds in the Servicing Accounts,
the Reserve Accounts, the Defeasance Deposit Account,
the Custodial Account, the Collection Account,
the Interest Reserve Account and the REO Account..........94
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.....................................96
SECTION 3.08. Enforcement of Alienation Clauses...........................99
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals...............................................102
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files....................................................106
<PAGE>
Page
----
SECTION 3.11. Servicing Compensation.....................................107
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports..............................111
SECTION 3.13. Annual Statement as to Compliance..........................113
SECTION 3.14. Reports by Independent Public Accountants..................114
SECTION 3.15. Access to Certain Information..............................115
SECTION 3.16. Title to REO Property; REO Account.........................115
SECTION 3.17. Management of REO Property.................................117
SECTION 3.18. Sale of Mortgage Loans and REO Properties..................119
SECTION 3.19. Additional Obligations of the Master Servicer..............123
SECTION 3.20. Modifications, Waivers, Amendments and Consents............124
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.........................130
SECTION 3.22. Sub-Servicing Agreements...................................132
SECTION 3.23. Representations and Warranties of the Master Servicer......134
SECTION 3.24. Representations and Warranties of the Special Servicer.....136
SECTION 3.25. Year 2000 Readiness of the Master Servicer and
the Special Servicer.....................................138
SECTION 3.26. Credit Leases..............................................138
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..............................................141
SECTION 4.02. Statements to Certificateholders; CSSA Loan Periodic
Update File Report.......................................151
SECTION 4.03. P&I Advances...............................................159
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.................................................161
SECTION 4.05. Calculations...............................................162
SECTION 4.06. Use of Agents..............................................163
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...........................................164
SECTION 5.02. Registration of Transfer and Exchange of Certificates......165
SECTION 5.03. Book-Entry Certificates....................................171
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..........172
SECTION 5.05. Persons Deemed Owners......................................173
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
<PAGE>
Page
----
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.................................................174
SECTION 6.02. Merger, Consolidation or Conversion of Depositor,
Master Servicer or Special Servicer......................174
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer.....................................175
SECTION 6.04. Resignation of Master Servicer and the Special Servicer....176
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer........................176
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee...................................177
SECTION 6.07. Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer...........................177
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.........................................177
SECTION 6.09. Designation of Special Servicer by the Controlling Class...177
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate..............................................179
SECTION 6.11. Certain Powers of the Controlling Class Representative.....179
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..........................................182
SECTION 7.02. Trustee to Act; Appointment of Successor...................187
SECTION 7.03. Notification to Certificateholders.........................188
SECTION 7.04. Waiver of Events of Default................................188
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.......189
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee..........................................190
SECTION 8.02. Certain Matters Affecting Trustee..........................191
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans...........................192
SECTION 8.04. Trustee May Own Certificates...............................193
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by
Trustee..................................................193
SECTION 8.06. Eligibility Requirements for Trustee.......................194
SECTION 8.07. Resignation and Removal of Trustee.........................195
SECTION 8.08. Successor Trustee..........................................196
SECTION 8.09. Merger or Consolidation of Trustee.........................196
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..............197
SECTION 8.11. Appointment of Custodians..................................198
SECTION 8.12. Appointment of Authenticating Agents.......................198
<PAGE>
SECTION 8.13. Appointment of REMIC Administrators........................199
SECTION 8.14. Access to Certain Information..............................200
SECTION 8.15. Reports to the Securities and Exchange Commission
and Related Reports......................................202
SECTION 8.16. Representations and Warranties of Trustee..................204
SECTION 8.17. Year 2000 Readiness of the Trustee.........................206
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation
of All Mortgage Loans....................................207
SECTION 9.02. Additional Termination Requirements........................214
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.......................................215
SECTION 10.02. Grantor Trust Administration...............................219
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment..................................................221
SECTION 11.02. Recordation of Agreement; Counterparts.....................223
SECTION 11.03. Limitation on Rights of Certificateholders.................223
SECTION 11.04. Governing Law..............................................224
SECTION 11.05. Notices....................................................224
SECTION 11.06. Severability of Provisions.................................225
SECTION 11.07. Grant of a Security Interest...............................225
SECTION 11.08. Streit Act.................................................226
SECTION 11.09. Successors and Assigns; Beneficiaries......................226
SECTION 11.10. Article and Section Headings...............................227
SECTION 11.11. Notices to Rating Agencies.................................227
SECTION 11.12. Global Opinions............................................228
SECTION 11.13. Complete Agreement.........................................228
<PAGE>
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
- ------------ --------------------
I Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Exceptions to the Representations and Warranties of the
Depositor
Exhibit No. Exhibit Description
- ----------- -------------------
A-1 Form of Class [A-1] [A-2] Certificate
A-2 Form of Class X Certificate
A-3 Form of Class [B][C][D][E] Certificate
A-4 Form of Class [F][G][H][J][K][L][M] Certificate
A-5 Form of Class [R-I][R-II][R-III] Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Calculation of NOI/Debt Service Coverage Ratios
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Non-Registered Certificates
F-2D Form II of Transferee Certificate for Transfers of Interests
in Book-Entry Non-Registered Certificates
G-1 Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
G-2 Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Form of UCC-1 financing statement
K Sub-Servicers in respect of which Sub-Servicing Agreements
are in effect or being negotiated as of the Closing Date
L Form of CSSA Loan Periodic Update File Report
M Form of CSSA Property File Report
<PAGE>
N Form of Comparative Financial Status Report
O Form of REO Status Report
P Form of Watch List Report
Q Form of Delinquent Loan Status Report
R Form of Historical Loan Modification Report
S Form of Historical Loss Estimate Report
T Form of NOI Adjustment Worksheet
U Form of Operating Statement Analysis
V Form of Loan Payoff Notification Report
W-1 Form of Information Request/Investor Certification for Website
Access from Certificate Owner
W-2 Form of Information Request/Investor Certification for Website
Access from Prospective Investor
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of June 1, 1999, among STRUCTURED ASSET SECURITIES CORPORATION, as
Depositor, FIRST UNION NATIONAL BANK, as Master Servicer, GMAC COMMERCIAL
MORTGAGE CORPORATION, as Special Servicer, and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates to be issued
hereunder in multiple Classes, which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund to be created hereunder.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (exclusive of any collections of
Additional Interest on the ARD Loans after their respective Anticipated
Repayment Dates) and certain other related assets subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC I". The Class R-I Certificates will represent the sole
class of "residual interests" in REMIC I for purposes of the REMIC Provisions
under federal income tax law. Except as provided below, each of the REMIC I
Regular Interests will relate to a specific Mortgage Loan. Each such REMIC I
Regular Interest will: (i) accrue interest at a per annum rate described in the
definition of "REMIC I Remittance Rate"; and (ii) have an initial Uncertificated
Principal Balance equal to the Cut-off Date Balance of the related Mortgage
Loan. The Legal Final Distribution Date of each of the REMIC I Regular Interests
is the Rated Final Distribution Date. None of the REMIC I Regular Interests will
be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table sets forth the designation,
the REMIC II Remittance Rate and the initial Uncertificated Principal Balance
for each of the REMIC II Regular Interests. The Legal Final Distribution Date
for each REMIC II Regular Interest is the Rated Final Distribution Date. None of
the REMIC II Regular Interests will be certificated.
Initial
REMIC II Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
A-1 Variable (1) $ 402,000,000
A-2 Variable (1) $ 802,800,000
B Variable (1) $ 90,854,000
C Variable (1) $ 86,904,000
<PAGE>
D Variable (1) $ 63,202,000
E Variable (1) $ 31,602,000
F Variable (1) $ 19,750,000
G Variable (1) $ 29,232,000
H Variable (1) $ 10,270,000
J Variable (1) $ 22,911,000
K Variable (1) $ 7,900,000
L Variable (1) $ 2,370,000
M Variable (1) $ 10,271,326
- ----------
(1) Calculated in accordance with the definition of "REMIC II Remittance Rate".
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R-III Certificates will evidence the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
Class designation, Pass-Through Rate and initial Class Principal Balance for
each Class of the Regular Interest Certificates. For federal income tax
purposes, each Class of the Regular Interest Certificates (other than the Class
X Certificates) and each of the thirteen Components of the Class X Certificates
will be designated as a separate "regular interest" in REMIC III. The Legal
Final Distribution for each Class of Regular Interest Certificates (or, in the
case of the Class X Certificates, for each of the thirteen Components thereof)
is the Rated Final Distribution Date.
Class Pass-Through Initial Class
Designation Rate Principal Balance
----------- ---- -----------------
Class A-1 6.410% per annum $ 402,000,000
Class A-2 6.780% per annum $ 802,800,000
Class B 6.930% per annum $ 90,854,000
Class C 7.020% per annum $ 86,904,000
Class D 7.020% per annum $ 63,202,000
Class E 7.020% per annum $ 31,602,000
Class X Variable (1) $ 1,580,066,326(2)
Class F 6.410% per annum $ 19,750,000
Class G 6.410% per annum $ 29,232,000
Class H 6.410% per annum $ 10,270,000
Class J 6.410% per annum $ 22,911,000
Class K 6.410% per annum $ 7,900,000
Class L 6.410% per annum $ 2,370,000
Class M 6.410% per annum $ 10,271,326
<PAGE>
----------
(1) Calculated in accordance with the definition of "Pass-Through Rate".
(2) Class Notional Amount. The Class X Certificates will not have a
Class Principal Balance, and will not be entitled to receive
distributions of principal. As more specifically provided herein,
interest in respect of such Certificates will consist of the
aggregate amount of interest accrued on the respective Component
Notional Amounts of its Components from time to time.
As provided herein, the Trustee shall take all actions necessary to
ensure that the portion of the Trust Fund consisting of the Grantor Trust Assets
maintains its status as a Grantor Trust under the Code.
The aggregate Cut-off Date Balance of the Mortgage Loans, the
initial aggregate Uncertificated Principal Balance of the REMIC I Regular
Interests, the initial aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests and the initial aggregate Class Principal Balance of the
respective Classes of Regular Interest Certificates (other than the Class X
Certificates) will in each case be $1,580,066,327.
Capitalized terms used in this Preliminary Statement have the
respective meanings assigned thereto in Section 1.01.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"Accrued Certificate Interest": With respect to any Class of
Principal Balance Certificates for any Distribution Date, one month's interest
at the Pass-Through Rate applicable to such Class of Certificates for such
Distribution Date, accrued during the related Interest Accrual Period on the
Class Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date. With respect to the Class X Certificates for
any Distribution Date, the aggregate Accrued Component Interest for all of its
Components for such Distribution Date. Accrued Certificate Interest shall be
calculated on a 30/360 Basis.
"Accrued Component Interest": With respect to each Component of the
Class X Certificates for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Component for such Distribution Date,
accrued during the related Interest Accrual Period on the Component Notional
Amount of such Component outstanding immediately prior to such Distribution
Date. Accrued Component Interest shall be calculated on a 30/360 Basis.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month in a year assumed
to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest on
an Actual/360 Basis.
<PAGE>
"Additional Information": As defined in Section 4.02(a).
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. For purposes of this Agreement, Additional Interest on an ARD Loan or
any successor REO Loan shall be deemed not to constitute principal or any
portion thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or any successor REO Loan, notwithstanding
that the terms of the related loan documents so permit. To the extent that any
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
"Additional Right": With respect to any Credit Lease, any
termination or abatement rights of the related Tenant arising from a Mortgagor's
default under such Credit Lease in performing certain obligations, including
environmental remediation not caused by the Tenant, enforcement of restrictive
covenants affecting other property owned by the Mortgagor, compliance with laws
affecting the related Mortgaged Property or common areas relating to such
Mortgaged Property.
"Additional Trust Fund Expense": Any of the following: (i) any
Special Servicing Fees, Liquidation Fees, Workout Fees and, in accordance with
Sections 3.03(d) and 4.03(d), interest on Advances payable to the Master
Servicer, the Special Servicer and/or the Trustee (other than out of Default
Interest and late payment charges); (ii) any of the expenses of the Trust Fund
that may be withdrawn pursuant to any of clauses (iv)(B), (ix), (xi), (xii),
(xiii) and (xv) of Section 3.05(a) out of general collections on the Mortgage
Loans and REO Properties on deposit in the Custodial Account; and (iii) any of
the expenses of the Trust Fund (other than Trustee Fees) that may be withdrawn
pursuant to any of clauses (ii), (iv), (v) and (vi) of Section 3.05(b) out of
general collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account.
"Administrative Cost Rate": With respect to each Mortgage Loan, as
specified in the Mortgage Loan Schedule, the sum of the related Master Servicing
Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event:" As defined in Section 10.02(e).
<PAGE>
"Adverse REMIC Event": As defined in Section 10.01(i).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Annual Accountants' Report": As defined in Section 3.14
"Annual Performance Certification": As defined in Section 3.13.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the Mortgage Rate for such ARD Loan
will increase as specified in the related Mortgage Note.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of the date on which the subject Mortgage Loan became a Required
Appraisal Loan and the date on which the applicable Required Appraisal was
obtained) equal to the excess, if any, of (a) the sum of, without duplication,
(i) the Stated Principal Balance of the subject Required Appraisal Loan, (ii) to
the extent not previously advanced by or on behalf of the Master Servicer or the
Trustee, all unpaid interest on the Required Appraisal Loan through the most
recent Due Date prior to such Determination Date (net of related Master
Servicing Fees and exclusive of any portion thereof that represents Additional
Interest and/or Default Interest), (iii) all accrued but unpaid Servicing Fees
in respect of such Required Appraisal Loan, (iv) all related unreimbursed
Advances (plus accrued interest thereon) made by or on behalf of the Master
Servicer, the Special Servicer or the Trustee with respect to such Required
Appraisal Loan, (v) any other unpaid Additional Trust Fund Expense in respect of
such Required Appraisal Loan and (vi) all currently due and unpaid real estate
taxes and assessments, insurance premiums and, if applicable, ground rents, and
any unfunded improvement or other applicable reserves, in respect of the related
Mortgaged Property (in each case, net of any amounts escrowed for such items)
over (b) the Required Appraisal Value.
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent appraisal or update thereof
that is contained in the related Servicing File.
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"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue additional interest at the rate specified in the
related Mortgage Note and the related Mortgagor is required to apply certain
excess monthly cash flow generated by the related Mortgaged Property to the
repayment of the outstanding principal balance on such Mortgage Loan.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan
delinquent in respect of its Balloon Payment, for each Due Date coinciding with
or following its most recent scheduled maturity date (including the related
Stated Maturity Date or any extended maturity date) as of which such Mortgage
Loan remains outstanding and part of the Trust Fund (provided that such Mortgage
Loan was not paid in full, and no other Liquidation Event occurred in respect
thereof, before the end of the Collection Period in which such maturity date
occurs), the scheduled monthly payment of principal and/or interest deemed to be
due in respect of such Mortgage Loan on such Due Date equal to the amount that
would have been due in respect thereof on such Due Date if such Mortgage Loan
had been required to continue to accrue interest (exclusive, however, of Default
Interest and, in the case of an ARD Loan after its Anticipated Repayment Date,
Additional Interest) in accordance with its terms, and to pay principal in
accordance with the amortization schedule (if any) in effect immediately prior
to, and without regard to the occurrence of, such maturity date. With respect to
any REO Loan, for any Due Date as of which the related REO Property remains part
of the Trust Fund, the scheduled monthly payment of principal and/or interest
deemed to be due in respect thereof on such Due Date equal to the Monthly
Payment (or, in the case of a Balloon Mortgage Loan described in the preceding
sentence of this definition, the Assumed Monthly Payment) that was due (or
deemed due) in respect of the related Mortgage Loan on the last Due Date prior
to its becoming an REO Loan.
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12 (or, in the absence of any such appointment, the Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i) the aggregate
of the amounts on deposit in the Custodial Account and the Collection Account
with respect to the respective Mortgage Loans and REO Properties as of the close
of business on the related Determination Date, together with any amounts
collected by or on behalf of the Master Servicer with respect to the respective
Mortgage Loans and REO Properties as of the close of business on the related
Determination Date and required to be (but, as of such time, not yet) deposited
in the Custodial Account, (ii) the aggregate amount of any P&I Advances made by
the Master Servicer and/or the Trustee for distribution on the Certificates on
such Distribution Date
<PAGE>
pursuant to Section 4.03, (iii) the aggregate amount transferred from the REO
Account (if established) to the Custodial Account during the month of such
Distribution Date, on or prior to the P&I Advance Date in such month, pursuant
to Section 3.16(c), (iv) the aggregate amount deposited by the Master Servicer
in the Collection Account for such Distribution Date pursuant to Section 3.19(a)
in connection with Prepayment Interest Shortfalls and (v) to the extent not
included in the amount described in clause (a)(i) of this definition, if such
Distribution Date occurs during March of any year, the aggregate of the Interest
Reserve Amounts transferred from the Interest Reserve Account to the Collection
Account in respect of each Interest Reserve Loan for distribution on such
Distribution Date, net of (b) the portion of the amount described in subclauses
(a)(i) and (a)(iii) of this definition that represents one or more of the
following: (i) collected Monthly Payments that are due on a Due Date following
the end of the related Collection Period, (ii) any amounts payable or
reimbursable to any Person from (A) the Custodial Account pursuant to clauses
(ii) through (xv) of Section 3.05(a) or (B) the Collection Account pursuant to
clauses (ii) through (vi) of Section 3.05(b), (iii) Prepayment Premiums and
Yield Maintenance Charges, (iv) Additional Interest collected in respect of the
ARD Loans after their respective Anticipated Repayment Dates, (v) if such
Distribution Date occurs in February of any year or during January of any year
that is not a leap year, the Interest Reserve Amounts with respect to the
Interest Reserve Loans to be withdrawn from the Collection Account and deposited
into the Interest Reserve Account in respect of such Distribution Date and held
for future distribution, all pursuant to Section 3.04(c), and (vi) any amounts
deposited in the Custodial Account or the Collection Account in error.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date
and as to which, in accordance with such terms, the Scheduled Payment due on its
Stated Maturity Date is at least two times larger than the Scheduled Payment due
on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the amount
of such proceeds (net of any expenses incurred in connection with such bid and
the transfer of servicing), multiplied by a fraction equal to (a) the Servicer
Fee Amount for the Master Servicer or such Sub-Servicer, as the case may be, as
of such date of determination, over (b) the aggregate of the Servicer Fee
Amounts for the Master Servicer and all of the Sub-Servicers as of such date of
determination.
<PAGE>
"Bloomfield": Bloomfield Servicing Company, LLC, or its successor in
interest.
"Bloomfield Serviced Mortgage Loan": A Long Due Date Mortgage
Loan that is subserviced by Bloomfield.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate": Any Subordinate Certificate
that constitutes a Book-Entry Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Minneapolis, Minnesota or in
each of the cities in which the Corporate Trust Office of the Trustee and the
Primary Servicing Offices of the Master Servicer and the Special Servicer are
located, are authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the LB Commercial Mortgage Trust 1999-C1,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, as executed by
the Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Factor": With respect to any Class of Regular Interest
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to six places, the numerator of which is the then current Class
Principal Balance or Class Notional Amount, as the case may be, of such Class of
Regular Interest Certificates, and the denominator of which is the Original
Class Principal Balance or Original Class Notional Amount, as the case may be,
of such Class of Regular Interest Certificates.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the then Certificate Factor for the
Class X Certificates, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
<PAGE>
"Certificate Principal Balance": With respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the then
Certificate Factor for the Class of Principal Balance Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Non-United States Person shall be Holder of a Residual
Interest Certificate for any purpose hereof and, (ii) solely for the purposes of
giving any consent, approval or waiver pursuant to this Agreement that relates
to any of the Depositor, the Master Servicer, the Special Servicer or the
Trustee in its respective capacity as such (except with respect to amendments
referred to in Section 11.01 hereof, any consent, approval or waiver by, of or
relating to the Controlling Class Representative and any election, removal or
replacement of the Special Servicer or the Controlling Class Representative
pursuant to Section 6.09), any Certificate registered in the name of the
Depositor, the Master Servicer, the Special Servicer or the Trustee, as the case
may be, or any Certificate registered in the name of any of its Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. The Certificate Registrar shall be
entitled to request and rely upon a certificate of the Depositor, the Master
Servicer or the Special Servicer in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Certificateholders" or "Holders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a
"Certificateholder" or "Holder" only the Person in whose name a Certificate is
registered in the Certificate Register.
"Certificateholder Reports": Collectively, the Distribution Date
Statement, the CSSA Loan Periodic Update File Report, the CSSA Property File
Report, the Mortgage Pool Data Update Report, the Delinquent Loan Status Report,
the Historical Loss Estimate Report, the Historical Loan Modification Report,
the REO Status Report, the Watch List Report, the Loan Payoff Notification
Report and the Comparative Financial Status Report .
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1 and Class A-2 Certificates.
<PAGE>
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A Principal Distribution Cross-Over Date": The first
Distribution Date as of the commencement of which (i) the Class A-1 Certificates
and the Class A-2 Certificates remain outstanding and (ii) the aggregate of the
Class Principal Balances of the Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L and Class M Certificates have been
reduced to zero as a result of the allocation of Realized Losses and Additional
Trust Fund Expenses pursuant to Section 4.04(a).
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a
<PAGE>
portion of a class of "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount": As of any date of determination, the then
aggregate of the Component Notional Amounts of all the Components of the Class X
Certificates.
"Class Principal Balance": The aggregate principal amount of any
Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each such
Class of Certificates shall equal the Original Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each such Class of
Certificates shall be permanently reduced by the amount of any distributions of
principal made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as applicable, and shall be further permanently reduced by the amount of
any Realized Losses and Additional Trust Fund Expenses deemed allocated thereto
on such Distribution Date pursuant to Section 4.04(a).
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class
R-III" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC III for purposes of the
<PAGE>
REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a portion of each of the Components, each of
which Components shall constitute a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Closing Date": June 10, 1999.
"Code": The Internal Revenue Code of 1986.
"Collection Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b), which shall be entitled
"[NAME OF TRUSTEE], as Trustee, in trust for the registered holders of LB
Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass-Through
Certificates, Series 1999-C1".
"Collection Period": With respect to any Mortgage Loan (or successor
REO Loan) for any Distribution Date, the period commencing on the day
immediately following the Determination Date in the calendar month preceding the
month in which such Distribution Date occurs (or, in the case of the initial
Distribution Date, commencing immediately following the Cut-off Date) and ending
on and including the Determination Date in the calendar month in which such
Distribution Date occurs. References in this Agreement to "Collection Period"
are to the applicable Collection Period for each Mortgage Loan (or successor REO
Loan) and Distribution Date.
"Commission": The Securities and Exchange Commission or any
successor agency.
"Comparative Financial Status Report": A report containing
substantially the information described in Exhibit N attached hereto and
including, among other things, (a) the occupancy and Debt Service Coverage Ratio
for each Mortgage Loan or the related Mortgaged Property, as applicable, as of
the last day of the calendar month immediately preceding the month in which such
report is prepared and (b) the revenue and net operating income for each of
three periods (to the extent such information is available): (i) the most
current available year-to-date, (ii) each of the previous two full fiscal years,
and (iii) the "base year" (representing the original analysis of information
used as of the Cut-off Date). For the purposes of the Master Servicer's
production of any such report, the Master Servicer may conclusively rely
(without independent verification), absent manifest error, on information
provided to it by the related Mortgage Loan Seller, the related Mortgagor or the
Special Servicer (if other than the Master Servicer or an Affiliate thereof).
"Component": Each of Component X-A-1, Component X-A-2, Component
X-B, Component X-C, Component X-D, Component X-E, Component X-F, Component X-G,
<PAGE>
Component X-H, Component X-J, Component X-K, Component X-L and Component X-M,
each constituting a separate "regular interest" in REMIC III for purposes of the
REMIC Provisions. Such Components are collectively evidenced by the Class X
Certificates.
"Component X-A-1": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest A-1 outstanding from time to
time.
"Component X-A-2": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest A-2 outstanding from time to
time.
"Component X-B": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest B outstanding from time to time.
"Component X-C": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest C outstanding from time to time.
"Component X-D": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest D outstanding from time to time.
"Component X-E": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest E outstanding from time to time.
"Component X-F": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest F outstanding from time to time.
"Component X-G": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest G outstanding from time to time.
"Component X-H": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest H outstanding from time to time.
"Component X-J": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest J outstanding from time to time.
<PAGE>
"Component X-K": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest K outstanding from time to time.
"Component X-L": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest L outstanding from time to time.
"Component X-M": One of thirteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest M outstanding from time to time.
"Component Notional Amount": The notional amount on which any of the
Components accrue interest, which, in the case of any Component, as of any date
of determination, is equal to the then current Uncertificated Principal Balance
of the Corresponding REMIC II Regular Interest.
"Controlling Class": As of any date of determination, the
outstanding Class of Principal Balance Certificates that (a) bears the latest
alphabetical Class designation and (b) has a Class Principal Balance which is
greater than 25% of the Original Class Principal Balance of such Class;
provided, however, that if no Class of Principal Balance Certificates has as of
such date of determination a Class Principal Balance greater than 25% of its
Original Class Principal Balance, the Controlling Class shall be the then
outstanding Class of Principal Balance Certificates bearing the latest
alphabetical Class designation. With respect to determining the Controlling
Class, the Class A-1 and Class A-2 Certificates shall be deemed a single Class
of Certificates.
"Controlling Class Certificateholder": As of any date of
determination, any Holder of a Certificate of the Controlling Class.
"Controlling Class Representative": As defined in Section 6.09.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property becoming an REO Property).
<PAGE>
"Corresponding REMIC II Regular Interest": With respect to any Class
of Principal Balance Certificates, the REMIC II Regular Interest that has an
alphabetical and, if applicable, numerical designation that is the same as the
alphabetical and, if applicable, numerical Class designation for such Class of
Principal Balance Certificates; and, with respect to any Component of the Class
X Certificates, the REMIC II Regular Interest that has an alphabetical and, if
applicable, numerical designation that, when preceded by "X-", is the same as
the alphabetical and, if applicable, numerical designation for such Component of
the Class X Certificates.
"Cross-Collateralized Group": Any group of Mortgage Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Credit Lease": With respect to each Credit Lease Loan, the lease
agreement between the Mortgagor as lessor and the Tenant as lessee of the
related Mortgaged Property.
"Credit Lease Loan": Each Mortgage Loan that is identified as a
"Credit Lease Loan" on the Mortgage Loan Schedule.
"CSSA Loan Periodic Update File Report": The monthly report in the
"CSSA Loan Periodic Update File" format substantially containing the information
called for in such format for the Mortgage Loans, which report shall be
substantially in the form attached hereto as Exhibit L. The initial data for
this report shall be provided by the Depositor.
"CSSA Property File Report": The monthly report in the "CSSA
Property File" format substantially containing the information called for in
such format for the Mortgaged Properties, which report shall be substantially in
the form attached hereto as Exhibit M. The initial data for this report shall be
provided by the Depositor.
"Custodial Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "[NAME OF
MASTER SERVICER], as Master Servicer, in trust for the registered holders of LB
Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass-Through
Certificates, Series 1999-C1."
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
<PAGE>
"Cut-off Date": With respect to each Mortgage Loan, its Due Date
occurring in June 1999. References in this Agreement to the "Cut-off Date" are
to the applicable Cut-off Date for each Mortgage Loan.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date, whether or not received.
"DCR": Duff & Phelps Credit Rating Co. or its successor in interest.
If neither such rating agency nor any successor remains in existence, "DCR"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer and the Special
Servicer, and specific ratings of Duff & Phelps Credit Rating Co. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Debt Service Coverage Ratio": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"Default Interest": With respect to any Mortgage Loan (or successor
REO Loan), any amounts collected thereon, other than late payment charges,
Prepayment Premiums or Yield Maintenance Charges, that represent penalty
interest (arising out of a default) in excess of (i) interest accrued on the
principal balance of such Mortgage Loan (or successor REO Loan) at the related
Mortgage Rate and (ii) in the case of an ARD Loan after the Anticipated
Repayment Date, any Additional Interest.
"Defaulted Mortgage Loan": A Specially Serviced Mortgage Loan (i)
that is delinquent in an amount equal to at least two Monthly Payments (not
including the Balloon Payment) or is delinquent thirty days or more in respect
of its Balloon Payment, in either case such delinquency to be determined without
giving effect to any grace period permitted by the related Mortgage or Mortgage
Note and without regard to any acceleration of payments under the related
Mortgage and Mortgage Note, or (ii) as to which the Master Servicer or the
Special Servicer has, by written notice to the related Mortgagor, accelerated
the maturity of the indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States Treasury obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Deposit Account": As defined in Section 3.04(a).
<PAGE>
"Defeasance Loan": Any Mortgage Loan which requires the related
Mortgagor (or permits the holder of such Mortgage Loan to require the related
Mortgagor) to pledge Defeasance Collateral to such holder in lieu of prepayment.
"Definitive Certificate": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Non-Registered
Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate": Any Subordinate Certificate
that has been issued as a Definitive Certificate.
"Delinquent Loan Status Report": A report containing substantially
the information described in Exhibit Q attached hereto and including, among
other things, each Mortgage Loan which, as of the close of business on the
Determination Date occurring at least two (2) Business Days prior to the
delivery of such report, was (1) delinquent 30-59 days, (2) delinquent 60-89
days, (3) delinquent 90 days or more, (4) current but specially serviced, (5) in
foreclosure but not yet REO Property, or (6) to the knowledge of the Master
Servicer or the Special Servicer, as applicable, the obligation of a Mortgagor
as to which bankruptcy or insolvency proceedings have commenced or been
commenced. That the information in such report is to be current as of the close
of business on the Determination Date occurring at least two (2) Business Days
prior to the delivery of such report is not intended to cause such report in
respect of any Long Due Date Mortgage Loan to always be current only as of the
Determination Date in the month prior to the month of delivery.
"Depositor": Structured Asset Securities Corporation or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to each Mortgage Loan (or
successor REO Loan), for any Distribution Date, the 8th day of the month in
which such Distribution Date occurs or, if such 8th day is not a Business Day,
the Business Day immediately preceding;
<PAGE>
provided that the Determination Date with respect to each Mortgage Loan (or
successor REO Loan) having a Due Date that occurs on or after the 8th day of a
calendar month shall be the first Business Day coinciding with or following such
Due Date. References in this Agreement to "Determination Date" are to the
applicable Determination Date for each Mortgage Loan (or successor REO Loan) and
Distribution Date.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale or lease,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer or any
Sub-Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Special Servicer or
any Sub-Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures with respect to such REO
Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Loan for purposes of allocating any Prepayment Premium or Yield Maintenance
Charge received thereon or with respect thereto among the respective Classes of
the Principal Balance Certificates (other than any Excluded Class thereof), a
rate equal to the yield (when compounded monthly) on the U.S. Treasury issue
(primary issue) with a maturity date closest to the maturity date for such
prepaid Mortgage Loan or REO Loan; provided that if there are two such U.S.
Treasury issues (a) with the same coupon, the issue with the lower yield shall
apply, and (b) with maturity dates equally close to the maturity date for the
prepaid Mortgage Loan or REO Loan, the issue with the earliest maturity date
shall apply.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the REMIC Administrator based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Interest
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Interest Certificate to such Person. The terms "United States", "State" and
<PAGE>
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Interest Certificates for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall for such Distribution Date allocated to such Class
of Certificates as provided below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated to the
respective Classes of Regular Interest Certificates on such Distribution Date as
follows: first, to the respective Classes of Regular Interest Certificates
(other than the Senior Certificates), sequentially in reverse alphabetical order
of Class designation, in each case up to an amount equal to the lesser of any
remaining unallocated portion of such Net Aggregate Prepayment Interest
Shortfall and any Accrued Certificate Interest in respect of the particular
Class of Certificates for such Distribution Date; and, thereafter, if and to the
extent that any portion of such Net Aggregate Prepayment Interest Shortfall
remains unallocated, among the respective Classes of Senior Certificates, up to,
and pro rata in accordance with, the respective amounts of Accrued Certificate
Interest for each such Class of Senior Certificates for such Distribution Date.
"Distributable Component Interest": With respect to any Component of
the Class X Certificates for any Distribution Date, the Accrued Component
Interest in respect of such Component for such Distribution Date, reduced (to
not less than zero) by the product of (i) the entire portion, if any, of the Net
Aggregate Prepayment Interest Shortfall for such Distribution Date that was
allocated to the Class X Certificates in accordance with the definition of
"Distributable Certificate Interest", multiplied by (ii) a fraction, the
numerator of which is the Accrued Component Interest in respect of such
Component for such Distribution Date, and the denominator of which is the
Accrued Certificate Interest in respect of the Class X Certificates for such
Distribution Date.
"Distribution Date": The 15th day of any month, or if such 15th day
is not a Business Day, the Business Day immediately following, commencing in
July 1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to: (i) any Mortgage Loan on or prior to
its Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
<PAGE>
"EDGAR": The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, the long-term
deposit or unsecured debt obligations of which are rated "A2" by Moody's and "A"
by DCR (if then rated by DCR) (or, in the case of either Rating Agency, such
lower rating as will not result in qualification (in the case of ratings
assigned by Moody's), downgrade or withdrawal of any of the ratings then
assigned to the Certificates by such Rating Agency, as evidenced in writing by
such Rating Agency) at any time such funds are on deposit therein (if such funds
are to be held for more than 30 days), or the short-term deposits of which are
rated "P-1" by Moody's and "D-1+" by DCR (if then rated by DCR) (or, in the case
of either Rating Agency, such lower rating as will not result in qualification
(in the case of ratings assigned by Moody's), downgrade or withdrawal of the
ratings then assigned to the Certificates by such Rating Agency, as evidenced in
writing by such Rating Agency), at any time such funds are on deposit therein
(if such funds are to be held for 30 days or less), or (ii) a segregated trust
account or accounts maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company, is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b), having in either case a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal or
state authority, or (iii) any other account, the use of which would not, in and
of itself, cause a qualification (in the case of ratings assigned by Moody's),
downgrade or withdrawal of the then-current rating assigned by either Rating
Agency to any Class of Certificates, as confirmed in writing by each Rating
Agency whose rating criteria specified in clause (i) of this definition has not
been satisfied.
"Environmental Assessment": A "Phase I assessment" as described in
and meeting the criteria of Chapter 5 of the FNMA Multifamily Guide and an ASTM
Standard for Environmental Site Assessments, each as amended from time to time.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other items for which an escrow has been created in respect of
the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
<PAGE>
"Excluded Classes": The Class G Certificates, the Class H
Certificates, the Class J Certificates, the Class K Certificates, the Class L
Certificates and the Class M Certificates.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"FHLMC": The Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date": The Distribution Date on which the final
distribution is to be made with respect to the Certificates in connection with a
termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Mortgage Loan or REO Property (other than a
Mortgage Loan that was paid in full and other than a Mortgage Loan or REO
Property, as the case may be, that was purchased by the Depositor pursuant to
Section 2.03, by a Controlling Class Certificateholder pursuant to Section
3.18(b), by the Master Servicer or the Special Servicer pursuant to Section
3.18(c) or by the Depositor, the Master Servicer, the Special Servicer, Lehman
Brothers or a Controlling Class Certificateholder pursuant to Section 9.01) that
there has been a recovery of all Insurance Proceeds, Liquidation Proceeds and
other payments or recoveries that the Special Servicer has determined, in
accordance with the Servicing Standard, will be ultimately recoverable.
"FNMA": The Federal National Mortgage Association or any successor.
"Global Opinion": As defined in Section 11.12.
"Grantor Trust": That certain "grantor trust" (within the meaning of
the Grantor Trust Provisions), the assets of which are the Grantor Trust Assets.
"Grantor Trust Assets": Any Additional Interest collected with
respect to an ARD Loan after its Anticipated Repayment Date.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property, the lease
agreement creating such leasehold interest.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and
<PAGE>
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products and urea formaldehyde.
"Historical Loan Modification Report": A report containing
substantially the information described in Exhibit R attached hereto, and
setting forth, among other things, those Mortgage Loans which, as of the close
of business on the Determination Date occurring at least two (2) Business Days
prior to the delivery of such report, have been modified pursuant to this
Agreement (i) during the Collection Period ending on such Determination Date and
(ii) since the Cut-off Date, showing the original and the revised terms thereof.
That the information in such report is to be current as of the close of business
on the Determination Date occurring at least two (2) Business Days prior to the
delivery of such report is not intended to cause such report in respect of any
Long Due Date Mortgage Loan to always be current only as of the Determination
Date in the month prior to the month of delivery.
"Historical Loss Estimate Report": A report containing substantially
the information described in Exhibit S attached hereto, and setting forth, among
other things, as of the close of business on the Determination Date occurring at
least two (2) Business Days prior to the delivery of such report, (i) the
aggregate amount of Liquidation Proceeds and expenses relating to each Final
Recovery Determination made, both during the Collection Period ending on such
Determination Date and historically, and (ii) the amount of Realized Losses
occurring during such Collection Period and historically, set forth on a
Mortgage Loan-by-Mortgage Loan basis. That the information in such report is to
be current as of the close of business on the Determination Date occurring at
least two (2) Business Days prior to the delivery of such report is not intended
to cause such report in respect of any Long Due Date Mortgage Loan to always be
current only as of the Determination Date in the month prior to the month of
delivery.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203, 207 and
211 of the National Housing Act.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder and any and all Affiliates thereof, (ii) does not have any
direct financial interest in or any material indirect financial interest in any
of the Depositor, either Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Controlling Class Certificateholder or any Affiliate thereof, and
(iii) is not connected with the Depositor, either Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Controlling Class Certificateholder
or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Depositor, a
<PAGE>
Mortgage Loan Seller, the Master Servicer, the Special Servicer, a Controlling
Class Certificateholder or any Affiliate thereof merely because such Person is
the beneficial owner of 1% or less of any class of securities issued by the
Depositor, the Master Servicer, the Special Servicer or any Affiliate thereof,
as the case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who (i) is a member in good standing of the Appraisal Institute, (ii)
if the state in which the subject Mortgaged Property is located certifies or
licenses appraisers, is certified or licensed in such state, and (iii) has a
minimum of five years experience in the subject property type and market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee), so long as REMIC I does not receive or derive any income from such
Person and provided that the relationship between such Person and REMIC I is at
arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee of an Opinion of
Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code, or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates or any particular Component
of the Class X Certificates, in each case consisting of one of the following:
(i) a 360-day year consisting of twelve 30-day months; (ii) actual number of
days elapsed in a 360-day year; (iii) actual number of days
<PAGE>
elapsed in a 365-day year; or (iv) actual number of days elapsed in an actual
calendar year (taking account of leap year).
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular Component of the Class X Certificates, for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Holder of a Certificate, or any Affiliate of any such Person.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as Trustee, in
trust for the registered holders of LB Commercial Mortgage Trust 1999-C1,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs during February of each year and
during January of each year that is not a leap year, an amount equal to one
day's interest accrued at the related Mortgage Rate on the related Stated
Principal Balance as of the Due Date in the month in which such Distribution
Date occurs (but prior to the application of any amounts due on such Due Date),
to the extent that a Monthly Payment is received in respect thereof for such Due
Date as of the related Determination Date or a P&I Advance is made in respect
thereof for such Due Date on the related P&I Advance Date.
"Interest Reserve Loan": Any Actual/360 Mortgage Loan.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Default Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, or on a Due Date coinciding with or preceding the Cut-off
Date, and not previously recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Collection
Period, other than Default Interest, whether as Insurance Proceeds, Liquidation
Proceeds, REO Revenues or otherwise, which represent late collections of the
principal and/or interest portions of a Monthly Payment (other than a Balloon
Payment) or an Assumed Monthly Payment in respect
<PAGE>
of the predecessor Mortgage Loan or of an Assumed Monthly Payment in respect of
such REO Loan due or deemed due on a Due Date in a previous Collection Period
and not previously recovered.
"LBHI": Lehman Brothers Holdings Inc., doing business as Lehman
Capital, a Division of Lehman Brothers Holdings Inc., or its successor in
interest.
"LBHI Mortgage Loan": Any of the Mortgage Loans sold by LBHI to the
Depositor on the Closing Date pursuant to the LBHI/Depositor Mortgage Loan
Purchase Agreement.
"LBHI/Depositor Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase Agreement dated as of May 26, 1999, between LBHI and the
Depositor.
"Lease Enhancement Policy": An insurance policy that provides,
subject to customary exclusions, that in the event of a permitted termination or
abatement of a Credit Lease by the Tenant as a result of a casualty or
condemnation, the insurer under such policy will be required to make a specified
insurance payment.
"Legal Final Distribution Date": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular Component of the Class X Certificates, the
"latest possible maturity date" thereof, calculated solely for purposes of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii).
"Lehman Brothers": Lehman Brothers Inc., or its successor in
interest.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Depositor pursuant to Section 2.03; or (iv) such
Mortgage Loan is purchased by a Controlling Class Certificateholder pursuant to
Section 3.18(b), by the Master Servicer or the Special Servicer pursuant to
Section 3.18(c), or by the Depositor, the Master Servicer, the Special Servicer,
Lehman Brothers or a Controlling Class Certificateholder pursuant to Section
9.01. With respect to any REO Property (and the related REO Loan), any of the
following events: (i) a Final Recovery Determination is made with respect to
such REO Property; or (ii) such REO Property is purchased by the Depositor, the
Master Servicer, the Special Servicer, Lehman Brothers or a Controlling Class
Certificateholder pursuant to Section 9.01.
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property (i)
<PAGE>
repurchased by the Depositor pursuant to Section 2.03 within 180 days of the
Depositor's notice or discovery of the Breach or Document Defect giving rise to
such repurchase obligation, (ii) purchased by a Controlling Class
Certificateholder pursuant to Section 3.18(b), (iii) purchased by the Master
Servicer or the Special Servicer pursuant to Section 3.18(c), or (iv) purchased
by the Depositor, the Master Servicer, the Special Servicer, Lehman Brothers or
a Controlling Class Certificateholder pursuant to Section 9.01), the fee
designated as such and payable to the Special Servicer pursuant to Section
3.11(c).
"Liquidation Fee Rate: With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the terms of the related Mortgage; (ii) the liquidation
of a Mortgaged Property or other collateral constituting security for a
defaulted Mortgage Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Defaulted Mortgage Loan by a Controlling Class Certificateholder
pursuant to Section 3.18(b) or by the Master Servicer or the Special Servicer
pursuant to Section 3.18(c) or any other sale thereof pursuant to Section
3.18(d); (v) the repurchase of a Mortgage Loan by the Depositor pursuant to
Section 2.03; or (vi) the purchase of a Mortgage Loan or REO Property by the
Depositor, the Master Servicer, the Special Servicer, Lehman Brothers or a
Controlling Class Certificateholder pursuant to Section 9.01.
"Loan Payoff Notification Report": A report containing substantially
the information described in Exhibit V attached hereto, and setting forth for
each Mortgage Loan as to which written notice of anticipated payoff has been
received as of the Determination Date occurring at least two (2) Business Days
prior to the delivery of such report, among other things, the control number,
the property name, the amount of principal expected to be paid, the expected
date of payment and the estimated amount of the Yield Maintenance Charge or
Prepayment Premium due. That the information in such report is to be current as
of the close of business on the Determination Date occurring at least two (2)
Business Days prior to the delivery of such report is not intended to cause such
report in respect of any Long Due Date Mortgage Loan to always be current only
as of the Determination Date in the month prior to the month of delivery.
"Lockout Period": With respect to any Mortgage Note that prohibits
the Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until such specified date.
"Long Due Date Mortgage Loan": Any Mortgage Loan with a monthly
Due Date after the 8th day of each calendar month.
<PAGE>
"LUBS": LUBS Inc. or its successor in interest.
"LUBS Mortgage Loan": Any of the Mortgage Loans sold by LUBS to the
Depositor on the Closing Date pursuant to the LUBS/Depositor Mortgage Loan
Purchase Agreement.
"LUBS/Depositor Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase Agreement dated as of May 26, 1999, between LUBS and the
Depositor.
"Maintenance Right": With respect to any Credit Lease, any
termination and abatement rights of the related Tenant arising from a
Mortgagor's default under such Credit Lease in performing obligations such as
required maintenance, repairs and replacements for the related Mortgaged
Property.
"Master Servicer": First Union National Bank or its successor in
interest, in its capacity as master servicer hereunder, or any successor master
servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
rate per annum designated as the "Master Servicing Fee Rate" with respect to
such Mortgage Loan on the Mortgage Loan Schedule.
"Memorandum": The final Private Placement Memorandum dated May 26,
1999, relating to the Non-Registered Certificates delivered by the Depositor to
Lehman Brothers as of the Closing Date.
"Merrill Lynch": Merrill Lynch, Pierce, Fenner & Smith Incorporated.
"Monthly Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled monthly payment (or, in the case of an ARD Loan after its
Anticipated Repayment Date, the minimum required monthly payment) of principal
and/or interest on such Mortgage Loan, including any Balloon Payment, that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20); provided that the Monthly
Payment due in respect of any ARD Loan after its Anticipated Repayment Date
shall not include Additional Interest.
<PAGE>
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer and the Special Servicer, and specific ratings of Moody's Investors
Service, Inc. herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original executed Mortgage Note, endorsed (without recourse,
representation or warranty, express or implied) to the order of Norwest
Bank Minnesota, National Association, as trustee for the registered
holders of LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1 or in blank, and further showing
a complete, unbroken chain of endorsement from the originator (if such
originator is other than the related Mortgage Loan Seller); or,
alternatively, if the original executed Mortgage Note has been lost, a
lost note affidavit and indemnity with a copy of such Mortgage Note;
(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case with
evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case with evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form, of (a) the
Mortgage and (b) any related Assignment of Leases (if such item is a
document separate from the Mortgage), in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered holders of LB
Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass-Through
Certificates, Series 1999-C1;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of LB Commercial
Mortgage Trust 1999-C1, Commercial
<PAGE>
Mortgage Pass-Through Certificates, Series 1999-C1;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan, or,
if such policy has not been issued, an irrevocable, binding commitment to
issue such title insurance policy;
(viii) any filed copies (with evidence of filing) of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the extent the
related Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an effective UCC
Financing Statement in favor of the related Mortgage Loan Seller on record
with the applicable public office for UCC Financing Statements, an
original UCC-2 or UCC-3 assignment, as appropriate, in form suitable for
filing, in favor of Norwest Bank Minnesota, National Association, as
trustee for the registered holders of LB Commercial Mortgage Trust
1999-C1, Commercial Mortgage Pass-Through Certificates, Series 1999-C1;
(ix) an original or copy of any Ground Lease and Ground Lease
estoppels relating to such Mortgage Loan;
(x) an original or copy of any loan agreement;
(xi) any lock-box agreement or cash management agreement relating to
such Mortgage Loan;
(xii) if such Mortgage Loan is a Credit Lease Loan, an original or
copy of the Credit Lease and Lease Enhancement Policy; and
(xiii) if such Mortgage Loan is a Credit Lease Loan and a Balloon
Loan, an original or copy of the Residual Value Insurance Policy;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clauses
(vi) and (ix)-(xiii) of this definition, shall be deemed to include such
documents only to the extent the Trustee or Custodian has actual knowledge of
their existence.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage
Loan
<PAGE>
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage and other security
documents contained in the related Mortgage File.
"Mortgage Loan Purchase Agreements": The LUBS/Depositor Mortgage
Loan Purchase Agreement and the LBHI/Depositor Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Schedule I (and also delivered to the Trustee and the Master Servicer in a
computer readable format). Such list shall set forth the following information
with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and
name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) the Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the Administrative Cost Rate;
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether the related Mortgage Loan is a Defeasance Loan;
(xiii) whether the related Mortgage Loan is secured by a letter of
credit;
(xiv) whether such Mortgage Loan is an ARD Loan and, if so, the
Anticipated
<PAGE>
Repayment Date and Additional Interest Rate;
(xv) whether the Mortgage Loan is a Credit Lease Loan and, if so,
the tenant under or guarantor of the related Credit Lease and the Rated
Party;
(xvi) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and the Cross-Collateralized Group to which it belongs;
(xvii) whether the Mortgage Loan provides for a lockbox and the type
of lockbox; and
(xviii) if the Mortgage Loan is a Credit Lease Loan, whether there
is a Lease Enhancement Policy or Residual Value Insurance Policy in
effect.
"Mortgage Loan Sellers": LBHI and LUBS.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Pool Data Update Report": With respect to any Distribution
Date, a report (which may be included as part of the Distribution Date
Statement), prepared by the Trustee, containing information regarding the
Mortgage Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Mortgage
Loans set forth on Annexes A-1 and A-2 to the Prospectus Supplement (calculated,
where applicable, on the basis of the most recent relevant information provided
by the Mortgagors to the Master Servicer or the Special Servicer, as the case
may be, and by the Master Servicer or the Special Servicer, as the case may be,
to the Trustee), which information shall be presented in tabular format
substantially similar to the format utilized on such annexes and shall also
include a loan-by-loan listing (in descending balance order) showing loan
number, property type, location, unpaid principal balance, Mortgage Rate,
paid-through date, maturity date, gross interest portion of the Monthly Payment,
principal portion of the Monthly Payment, and any Prepayment Premium or Yield
Maintenance Charge received.
"Mortgage Rate": With respect to any Mortgage Loan (and any
successor REO Loan), the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Mortgage Loan from time to time in
accordance with the related Mortgage Note and applicable law, as such rate may
be modified in accordance with Section 3.20 or in connection with a bankruptcy,
insolvency or similar proceeding involving the related Mortgagor. In the
<PAGE>
case of each ARD Loan, the related Mortgage Rate shall increase in accordance
with the related Mortgage Note if the particular Mortgage Loan is not paid in
full by its Anticipated Repayment Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans (including Specially Serviced
Mortgage Loans) during the related Collection Period, exceeds (b) the aggregate
amount deposited by the Master Servicer in the Collection Account for such
Distribution Date pursuant to Section 3.19(a) in connection with such Prepayment
Interest Shortfalls.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds held in such Investment Account in accordance with Section 3.06, exceeds
the aggregate of all interest and other income realized during such Collection
Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as of any date of determination, a rate per annum equal to the then
related Mortgage Rate minus the sum of the Trustee Fee Rate, the related Master
Servicing Fee Rate and, in the case of an ARD Loan after its Anticipated
Repayment Date, the related Additional Interest Rate.
"Net Operating Income" or "NOI": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"Net Prepayment Consideration": The Prepayment Consideration
received with respect to any Mortgage Loan, net of any Workout Fee or
Liquidation Fee payable therefrom.
"New Lease": Any lease of REO Property entered into on behalf of
REMIC I, including any lease renewed, modified or extended on behalf of REMIC I
if REMIC I has the
<PAGE>
right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer with respect to Specially Serviced Mortgaged Loans and REO Loans, and
by the Master Servicer with respect to all other Mortgage Loans, containing
substantially the information described in Exhibit T attached hereto, presenting
the computations made in accordance with the methodology described in Exhibit T
to "normalize" the full year net operating income and debt service coverage
numbers used in the other reports required by this Agreement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan or REO Loan by the Master
Servicer or the Trustee, which P&I Advance such party has determined in its
reasonable, good faith judgment, will not be ultimately recoverable from late
payments, Insurance Proceeds or Liquidation Proceeds, or any other recovery on
or in respect of such Mortgage Loan or REO Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property by the
Master Servicer, the Special Servicer or the Trustee, which Servicing Advance
such party has determined, in its reasonable, good faith judgment, will not be
ultimately recoverable from late payments, Insurance Proceeds, Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Property.
"Non-Registered Certificate": Any Certificate that has not been
registered under the Securities Act. As of the Closing Date, the Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class R-I, Class R-II or Class
R-III Certificates are Non-Registered Certificates.
"Non-United States Person": Any person other than a United States
Person.
"Officers' Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
"Operating Statement Analysis": With respect to each Specially
Serviced Mortgage Loan and REO Property, a report prepared by the Special
Servicer, and with respect to all other Mortgage Loans, a report prepared by the
Master Servicer, substantially containing the information described in Exhibit U
attached hereto.
"Opinion of Counsel": A written opinion of counsel (which counsel
shall be
<PAGE>
Independent of the Depositor, the Master Servicer and the Special Servicer)
acceptable to and delivered to the Trustee or any other specified Person, as the
case may be.
"Original Class Notional Amount": With respect to the Class X
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
which is equal to $1,580,066,326.
"Original Class Principal Balance": With respect to any Class of
Principal Balance Certificates, the initial Class Principal Balance thereof as
of the Closing Date, in each case as specified in the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date, 6.410% per
annum;
(ii) the Class A-2 Certificates for any Distribution Date, 6.780%
per annum;
(iii) the Class B Certificates for any Distribution Date, 6.930% per
annum;
(iv) the Class C Certificates for any Distribution Date, 7.020% per
annum;
(v) the Class D Certificates for any Distribution Date, 7.020% per
annum;
(vi) the Class E Certificates for any Distribution Date, 7.020% per
annum;
(vii) the Class F Certificates for any Distribution Date, 6.410% per
annum;
(viii) the Class G Certificates for any Distribution Date, 6.410%
per annum;
(ix) the Class H Certificates for any Distribution Date, 6.410% per
annum;
(x) the Class J Certificates for any Distribution Date, 6.410% per
annum;
(xi) the Class K Certificates for any Distribution Date, 6.410% per
annum;
(xii) the Class L Certificates for any Distribution Date, 6.410% per
annum;
(xiii) the Class M Certificates for any Distribution Date, 6.410%
per annum;
<PAGE>
(xiv) each Component of the Class X Certificates for any
Distribution Date, the excess, if any, of (A) the Weighted Average REMIC I
Remittance Rate for such Distribution Date, over (B) the fixed
Pass-Through Rate applicable to the Class of Principal Balance
Certificates whose alphabetical (and, if applicable, numerical) Class
designation is included in the designation of such Component; and
(xv) the Class X Certificates for any Distribution Date, the
weighted average (expressed as a percentage and rounded to six decimal
places) of the respective Pass-Through Rates applicable to all of the
Components of such Class for such Distribution Date, weighted on the basis
of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date.
The Weighted Average REMIC I Remittance Rate referenced above in this definition
is also the REMIC II Remittance Rate for each REMIC II Regular Interest.
"Percentage Interest": With respect to any Regular Interest
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Original Class Principal Balance or Original Class Notional Amount,
as the case may be, of the relevant Class. With respect to a Residual Interest
Certificate, the percentage interest in distributions to be made with respect to
the relevant Class, as stated on the face of such Certificate.
"Permitted Investments": Any one or more of the following
obligations or securities (including, without limitation, obligations or
securities of the Trustee if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof (having original maturities of not more
than 365 days), provided such obligations are backed by the full faith and
credit of the United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(ii) repurchase obligations with respect to any security described
in clause (i) above (having original maturities of not more than 365
days), provided that the short-term deposit or debt obligations, of the
party agreeing to repurchase such obligations are rated in the highest
rating category of each of Moody's and DCR (or, in the case of either
Rating Agency, such lower rating as will not result in qualification
<PAGE>
(in the case of ratings assigned by Moody's), downgrade or withdrawal of
any of the ratings then assigned to the Certificates by such Rating
Agency, as evidenced in writing by such Rating Agency). In addition, any
such item by its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may either
be fixed or variable. If such interest is variable, interest must be tied
to a single interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under the laws
of the United States or any state thereof (having original maturities of
not more than 365 days), the short term obligations of which are rated in
the highest rating category of each of Moody's and DCR (or, in the case of
either Rating Agency, such lower rating as will not result in
qualification (in the case of ratings assigned by Moody's), downgrade or
withdrawal of any of the ratings then assigned to the Certificates by such
Rating Agency, as evidenced in writing by such Rating Agency). In
addition, any such item by its terms must have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof (or if not so incorporated, the commercial
paper is United States Dollar denominated and amounts payable thereunder
are not subject to any withholding imposed by any non-United States
jurisdiction) which is rated in the highest rating category of each of
Moody's and DCR (if rated by DCR) (or, in the case of either Rating
Agency, such lower rating as will not result in qualification (in the case
of ratings assigned by Moody's), downgrade or withdrawal of any of the
ratings then assigned to the Certificates by such Rating Agency, as
evidenced in writing by such Rating Agency). In addition, such commercial
paper by its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may either
by fixed or variable. If such interest is variable, interest must be tied
to a single interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(v) units of money market funds rated in the highest applicable
rating category of each Rating Agency (or, in the case of either Rating
Agency, such lower rating as will not result in qualification (in the case
of ratings assigned by Moody's), downgrade or withdrawal of any of the
ratings then assigned to the Certificates by such Rating Agency, as
evidenced in writing by such Rating Agency) and which seeks to maintain a
constant net asset value; and
(vi) any other obligation or security that (A) is acceptable to each
Rating
<PAGE>
Agency, evidence of which acceptability shall be provided in writing by
each Rating Agency to the Master Servicer, the Special Servicer and the
Trustee and (B) constitutes a "cash flow investment" (within the meaning
of the REMIC Provisions), as evidenced by an Opinion of Counsel obtained
at the expense of the Person that wishes to include such obligation or
security as a Permitted Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee": Any Transferee of a Residual Interest
Certificate other than a Disqualified Organization or Non-United States Person;
provided that if a Transferee is classified as a partnership under the Code,
such Transferee shall only be a Permitted Transferee if all of its beneficial
owners are United States Persons.
"Person": Any individual, corporation, partnership, joint venture,
association, joint- stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Interest Certificateholder": As to any taxable
year of REMIC I, REMIC II or REMIC III, the Holder of Certificates entitled to
the largest percentage of the Voting Rights allocated to the related Class of
Residual Interest Certificates.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
"Prepayment Consideration": Any Prepayment Premium or Yield
Maintenance Charge.
<PAGE>
"Prepayment Consideration Entitlement": With respect to (i) any
Distribution Date on which any Net Prepayment Consideration is distributable and
(ii) any Class of Principal Balance Certificates (other than any Excluded Class)
entitled to distributions of principal on such Distribution Date, an amount
equal to the product of (a) such Net Prepayment Consideration, multiplied by (b)
a fraction (not greater than 1.0 or less than 0.0), the numerator of which is
equal to the excess, if any, of the Pass-Through Rate for such Class of
Principal Balance Certificates over the relevant Discount Rate, and the
denominator of which is equal to the excess, if any, of the Mortgage Rate for
such Mortgage Loan (or REO Loan) over the relevant Discount Rate, and further
multiplied by (c) a fraction, the numerator of which is equal to the amount of
principal distributable to such Class of Principal Balance Certificates on such
Distribution Date pursuant to Section 4.01(a), and the denominator of which is
equal to the Principal Distribution Amount for such Distribution Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made after its Due Date
in any Collection Period, any payment of interest (net of related Master
Servicing Fees) actually collected from the related Mortgagor and intended to
cover interest accrued on such Principal Prepayment during the period from and
after such Due Date (exclusive, however, of any related Prepayment Premium or
Yield Maintenance Charge that may have been collected and, in the case of an ARD
Loan after its Anticipated Repayment Date, further exclusive of any Additional
Interest).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part made prior to its
Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor (without regard to any Prepayment Premium
or Yield Maintenance Charge that may have been collected), that would have
accrued at a rate per annum equal to the related Net Mortgage Rate plus the
Trustee Fee Rate on the amount of such Principal Prepayment during the period
from the date to which interest was paid by the related Mortgagor to, but not
including, such Due Date.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Primary Servicing Office": The offices of the Master Servicer or
the Special Servicer, as the context may require, that are primarily responsible
for such party's servicing obligations hereunder. As of the Closing Date, the
Primary Servicing Office of the Master Servicer is located at NC 1075, 8739
Research Drive, URP-4, Charlotte, North Carolina 28288-1075, and the Primary
Servicing Office of the Special Servicer is located at 650 Dresher Road,
Horsham, Pennsylvania 19044.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The
<PAGE>
Wall Street Journal, as such "prime rate" may change from time to time. If The
Wall Street Journal ceases to publish the "prime rate", then the Trustee shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Principal Balance Certificate": Any Regular Interest Certificate
(other than a Class X Certificate).
"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the aggregate (without duplication) of the following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) received on the Mortgage Loans during the related Collection
Period, in each case net of any portion of the particular payment that
represents a Late Collection of principal for which a P&I Advance was
previously made for a prior Distribution Date or that represents the
principal portion of a Monthly Payment due on or before the Cut-off Date
or on a Due Date subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were received prior
to the related Collection Period;
(c) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds and Insurance Proceeds
received on any Mortgage Loans during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of such Mortgage Loans, in each case net of any portion of such
proceeds that represents a Late Collection of principal due on or before
the Cut-off Date or for which a P&I Advance was previously made for a
prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Insurance Proceeds
and REO Revenues received in respect of any REO Properties during the
related Collection Period that were identified and applied by the Master
Servicer as recoveries of principal of the related REO Loans, in each case
net of any portion of such proceeds and/or revenues that represents a Late
Collection of principal due on or before the Cut-off Date or for which a
P&I Advance was previously made for a prior Distribution Date; and
<PAGE>
(f) the aggregate of the principal portions of all P&I Advances made
in respect of the Mortgage Loans and any REO Loans with respect to such
Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected)
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated May 26, 1999, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The prospectus supplement dated May 26,
1999, relating to the Registered Certificates.
"Purchase Price": With respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of: (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Loan) as of the date of
purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Loan) at the related Mortgage Rate to, but not including, the Due
Date in the Collection Period of purchase (exclusive, however, of any portion of
such accrued but unpaid interest that represents Default Interest or, in the
case of an ARD Loan after its Anticipated Repayment Date, Additional Interest),
(c) all related unreimbursed Servicing Advances, and (d) solely in the case of a
purchase by the Depositor pursuant to Section 2.03, all accrued and unpaid
interest in respect of related Advances and any costs of enforcing the
repurchase obligation against the Depositor.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date": The Distribution Date in June 2031.
"Rated Party": With respect to any Credit Lease, the Tenant under
such Credit Lease, the affiliate of such Tenant or the guarantor of such
Tenant's obligations under such Credit Lease, as applicable, that as of the
Closing Date has long-term senior unsecured debt obligations or long-term senior
unsecured credit facilities, as the case may be, that have been assigned, as of
the Closing Date, a public rating of at least "BB" (or the equivalent) by each
Rating Agency, which Person is identified on the Mortgage Loan Schedule.
"Rating Agency": Each of Moody's and DCR.
<PAGE>
"Realized Loss": With respect to: (1) each Mortgage Loan as to which
a Final Recovery Determination has been made, or with respect to any successor
REO Loan as to which a Final Recovery Determination has been made as to the
related REO Property, an amount (not less than zero) equal to (a) the unpaid
principal balance of such Mortgage Loan or REO Loan, as the case may be, as of
the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or such REO Loan, as the case may be, to but not
including the Due Date in the Collection Period in which the Final Recovery
Determination was made (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest or, in the case of an ARD Loan
after its Anticipated Repayment Date, Additional Interest), plus (c) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (d) all
payments and proceeds, if any, received in respect of such Mortgage Loan or the
REO Property that relates to such REO Loan, as the case may be, during the
Collection Period in which such Final Recovery Determination was made; (2) each
Mortgage Loan as to which any portion of the principal or previously accrued
interest payable thereunder was canceled in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, the amount of such principal and/or interest (other
than Default Interest and, in the case of an ARD Loan after its Anticipated
Repayment Date, Additional Interest) so cancelled; and (3) each Mortgage Loan as
to which the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20, the amount of the consequent reduction in the interest portion of each
successive Monthly Payment due thereon (each such Realized Loss shall be deemed
to have been incurred on the Due Date for each affected Monthly Payment).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Certificate that has been registered
under the Securities Act. As of the Closing Date, the Class A-1, Class A-2,
Class B, Class C, Class D, Class E and Class X Certificates are Registered
Certificates.
"Regular Interest Certificate": Any REMIC III Certificate other than
a Class R-III Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest, compounded annually, on Servicing Advances in accordance with
Section 3.03(d) and on P&I Advances in accordance with Section 4.03(d), which
rate per annum is equal to the
<PAGE>
Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Any REMIC administrator appointed pursuant to
Section 8.13 (or, in the absence of any such appointment, the Trustee).
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made, and consisting
of: (i) the Mortgage Loans as from time to time are subject to this Agreement
and all payments under and proceeds of such Mortgage Loans received after the
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date and other than Additional Interest collected in respect
of the ARD Loans after their respective Anticipated Repayment Dates), together
with all documents included in the related Mortgage Files and any related Escrow
Payments and Reserve Funds; (ii) any REO Property acquired in respect of a
Mortgage Loan; and (iii) such funds or assets as from time to time are deposited
in the Custodial Account, the Collection Account, the Interest Reserve Account
and, if established, the REO Account, exclusive of any amounts that represent
Additional Interest collected in respect of the ARD Loans after their respective
Anticipated Repayment Dates.
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, either: (a) if, based on the terms thereof
in effect as of the Closing Date, the related Mortgage Loan accrued interest on
a 30/360 Basis, the Net Mortgage Rate in effect for the related Mortgage Loan as
of the Closing Date (without regard to any subsequent modifications, waivers or
amendments of such Mortgage Loan); and (b) if, based on the terms thereof in
effect as of the Closing Date, the related Mortgage Loan did not accrue interest
on a 30/360 Basis, a rate per annum equal to (i) a fraction (expressed as a
percentage), the numerator of which is the product of twelve times the aggregate
amount of interest that would accrue during the related Interest Accrual Period
on the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to such Distribution Date if such interest were
calculated (A) at the Mortgage Rate in effect for the related Mortgage Loan as
of
<PAGE>
the Closing Date (without regard to any subsequent modifications, waivers or
amendments of such Mortgage Loan) and (B) on the same Interest Accrual Basis as
is applicable to the related Mortgage Loan, and the denominator of which is the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to such Distribution Date, minus (ii) the applicable
Administrative Cost Rate; provided that, in the case of a REMIC I Regular
Interest that corresponds to an Interest Reserve Loan, if the subject Interest
Accrual Period occurs during January of any year or during December of any year
that does not immediately precede a leap year, the amount of the numerator for
the fraction described in clause (b)(i) of this definition shall be reduced by
the related Interest Reserve Amount that is to be transferred from the
Collection Account to the Interest Reserve Account in the following calendar
month in accordance with Section 3.04(c) and, if the subject Interest Accrual
Period occurs during February of any year, the amount of the numerator for the
fraction described in clause (b)(i) of this definition shall be increased by any
related Interest Reserve Amount(s) to be transferred from the Interest Reserve
Account to the Collection Account pursuant to Section 3.05(c) for distribution
on the Distribution Date in March of such year.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests conveyed in trust to the Trustee for the benefit of
REMIC III, as holder of the REMIC II Regular Interests, and the Holders of the
Class R-II Certificates pursuant to Section 2.06, with respect to which a
separate REMIC election is to be made.
"REMIC II Regular Interest": Any of the thirteen separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at the REMIC II Remittance Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC II Regular Interests are set
forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate": With respect to each REMIC II Regular
Interest for any Distribution Date, the Weighted Average REMIC I Remittance Rate
for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the
REMIC II Regular Interests conveyed in trust to the Trustee for the benefit of
the Holders of the REMIC III Certificates pursuant to Section 2.08, with respect
to which a separate REMIC election is to be made.
"REMIC III Certificate": Any Class A-1, Class A-2, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M or Class R-III Certificate.
"Rents from Real Property": With respect to any REO Property, gross
income
<PAGE>
of the character described in Section 856(d) of the Code.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "[NAME OF
SPECIAL SERVICER], as Special Servicer, in trust for registered holders of LB
Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass-Through
Certificates, Series 1999-C1".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
provide for monthly payments of principal and/or interest equal to its Assumed
Monthly Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such predecessor Mortgage Loan and the acquisition of
the related REO Property as part of the Trust Fund). Each REO Loan shall be
deemed to have an initial unpaid principal balance and Stated Principal Balance
equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than a Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Loan. Collections in respect of each REO Loan (after provision for
amounts to be applied to the payment of, or to be reimbursed to the Master
Servicer or the Special Servicer for the payment of, the costs of operating,
managing and maintaining the related REO Property or for the reimbursement of
the Master Servicer or the Special Servicer for other related Servicing
Advances) shall be treated: first, as a recovery of accrued and unpaid interest
on such REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of receipt (exclusive, however, in the case of an REO
Loan that relates to an ARD Loan after its Anticipated Repayment Date, of any
such accrued and unpaid interest that constitutes Additional Interest); second,
as a recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; and third, in accordance with the normal servicing practices
of the Master Servicer, as a recovery of any other amounts due and owing in
respect of such REO Loan. Notwithstanding the foregoing, all amounts payable or
reimbursable to the Master Servicer, the Special Servicer or the Trustee in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including, without
<PAGE>
limitation, any unpaid Servicing Fees and any unreimbursed Servicing Advances
and P&I Advances, together with any interest accrued and payable to the Master
Servicer, the Special Servicer or the Trustee in respect of such Servicing
Advances and P&I Advances in accordance with Sections 3.03(d) and 4.03(d), shall
continue to be payable or reimbursable to the Master Servicer, the Special
Servicer or the Trustee, as the case may be, in respect of an REO Loan pursuant
to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report containing substantially the
information described in Exhibit O attached hereto and including, with respect
to each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date occurring at least two (2) Business Days
prior to the delivery of such report, among other things, (i) the Acquisition
Date of such REO Property, (ii) the amount of income collected with respect to
such REO Property (net of related expenses) and other amounts, if any, received
on such REO Property during the Collection Period ending on such Determination
Date and (iii) the value of the REO Property based on the most recent appraisal
or other valuation thereof available to the Special Servicer as of such
Determination Date (including any valuation prepared internally by the Special
Servicer). That the information in such report is to be current as of the close
of business on the Determination Date occurring at least two (2) Business Days
prior to the delivery of such report is not intended to cause such report in
respect of any Long Due Date Mortgage Loan to always be current only as of the
Determination Date in the month prior to the month of delivery.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer of,
as applicable, the Master Servicer in the form of Exhibit D-1 attached hereto or
the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal Loan,
an appraisal of the related Mortgaged Property from an Independent Appraiser
selected by the party required or authorized to obtain such appraisal hereunder,
which appraisal shall be prepared in accordance with 12 CFR ss.225.62 and
conducted in accordance with the standards of the Appraisal Institute.
"Required Appraisal Loan": Any Mortgage Loan (i) that is sixty (60)
days or
<PAGE>
more delinquent in respect of any Monthly Payment, (ii) that becomes an REO
Loan, (iii) that has been modified by the Special Servicer to reduce the amount
of any Monthly Payment (other than a Balloon Payment), (iv) with respect to
which a receiver in bankruptcy is appointed and continues in such capacity in
respect of the related Mortgaged Property, (v) with respect to which the related
Mortgagor is subject to a bankruptcy, insolvency or similar proceedings or (vi)
with respect to which any Balloon Payment on such Mortgage Loan has not been
paid within 20 days following its most recent scheduled maturity date. Any
Required Appraisal Loan shall cease to be such at such time as it has become a
Corrected Mortgage Loan, it has remained current for at least three (3)
consecutive Monthly Payments, and no other Servicing Transfer Event has occurred
with respect thereto during the preceding three-month period.
"Required Appraisal Value": With respect to any Mortgaged Property
securing (or REO Property relating to) a Required Appraisal Loan, an amount
equal to 90% of the Appraised Value (net of any prior liens and estimated
liquidation expenses) of such Mortgaged Property (or REO Property) as determined
by a Required Appraisal or any letter update of such Required Appraisal; and
provided further that for purposes of determining any Appraisal Reduction Amount
in respect of such Required Appraisal Loan, such Appraisal Reduction Amount
shall be amended annually to reflect the Required Appraisal Value determined
pursuant to any Required Appraisal or letter update of a Required Appraisal
conducted subsequent to the original Required Appraisal performed pursuant to
Section 3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held by or on behalf of the mortgagee
representing reserves for repairs, capital improvements and/or environmental
remediation in respect of the related Mortgaged Property.
"Residual Interest Certificate": A Class R-I, Class R-II or Class
R-III Certificate.
"Residual Value Insurance Policy": With respect to any Credit Lease
Loan that is also a Balloon Mortgage Loan, an insurance policy that insures the
payment of the related Balloon Payment to the extent that the related Mortgaged
Property cannot be sold for such amount at stated maturity because of changes in
market conditions.
"Responsible Officer": When used with respect to the Trustee, the
President, the Treasurer, the Secretary, any Vice President, any Assistant Vice
President, any Trust Officer, any Assistant Secretary or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and having direct responsibility for the
administration of this Agreement.
<PAGE>
"Restricted Servicer Reports": Each of the Watch List, Operating
Statement Analysis, NOI Adjustment Worksheet and Comparative Financial Status
Report.
"Review Package": A package of documents consisting of a memorandum
outlining the analysis and recommendation (in accordance with the Servicing
Standard) of the Master Servicer or the Special Servicer, as the case may be,
with respect to the matters subject thereof, and copies of all relevant
documentation.
"S&P": Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., or any successor in interest.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the Monthly
Payment on such Mortgage Loan that is or would be, as the case may be, payable
by the related Mortgagor on such Due Date under the terms of the related
Mortgage Note as in effect on the Closing Date, without regard to any subsequent
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, and assuming that the full amount of each prior
Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2 or Class X
Certificate.
"Servicer Fee Amount": With respect to each Sub-Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the principal balance
of such Mortgage Loan as of the end of the immediately preceding Collection
Period and (b) the servicing fee rate specified in the related Sub-Servicing
Agreement for such Mortgage Loan. With respect to the Master Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan, (a) the principal balance of such Mortgage Loan as of
the end of the immediately preceding Collection Period and (b) the difference
between the Master Servicing Fee Rate for such Mortgage Loan over the servicing
fee rate (if any) applicable to such Mortgage Loan as specified in any
Sub-Servicing Agreement related to such Mortgage Loan.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer or the Trustee in connection with the servicing of a Mortgage Loan
after a default, delinquency or
<PAGE>
other unanticipated event, or in connection with the administration of any REO
Property, including, but not limited to, the cost of (a) compliance with the
obligations of the Master Servicer, the Special Servicer or the Trustee, if any,
set forth in Section 3.03(c), (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Insurance
Proceeds or Liquidation Proceeds, (d) any enforcement or judicial proceedings
with respect to a Mortgaged Property, including, without limitation,
foreclosures, (e) any Required Appraisal or any other appraisal expressly
permitted or required to be obtained hereunder, (f) the operation, management,
maintenance and liquidation of any REO Property and (g) compliance with the
obligations of the Master Servicer set forth in Section 3.26, to the extent that
the related Reserve Funds or excess cash flow after scheduled debt service on
the related Mortgage Loan are insufficient, and the payment of which is
necessary to avoid a Tenant exercising a Maintenance Right or Additional Right;
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include allocable overhead of the Master Servicer or the Special
Servicer, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses and similar internal costs and
expenses, or costs and expenses incurred by any such party in connection with
its purchase of any Mortgage Loan or REO Property pursuant to any provision of
this Agreement.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File) in the possession of the Master Servicer or
the Special Servicer and relating to the origination and servicing of any
Mortgage Loan, including, without limitation, appraisals, surveys, engineering
reports and environmental reports.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, to service and administer the Mortgage Loans and REO
Properties for which it is responsible: (i) with the same care, skill and
diligence as is normal and usual in its general mortgage servicing and asset
management activities performed on behalf of third parties (giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders) or on behalf of itself, whichever is
higher, in any event with respect to mortgage loans comparable to such Mortgage
Loans and real properties comparable to such REO Properties; (ii) with a view to
the timely collection of all scheduled payments of principal and interest under
the Mortgage Loans or, in the case of the Special Servicer, if a Mortgage Loan
comes into and continues in default and if, in the reasonable, good faith
<PAGE>
judgment of the Special Servicer, no satisfactory arrangements can be made for
the collection of the delinquent payments, with a view to the maximization of
the recovery on such Mortgage Loan to the Certificateholders (as a collective
whole) on a present value basis (the relevant discounting of anticipated
collections that will be distributable to the Certificateholders to be performed
at the related Mortgage Rate); and (iii) without regard to (A) any known
relationship that the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate thereof may have with the related borrower; (B) the
ownership of any Certificate by the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof; (C) the obligation of the Master
Servicer or the Special Servicer, as the case may be, to make Advances; (D) the
right of the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate of either of them, to receive reimbursement of costs, or the
sufficiency of any compensation payable to it hereunder or with respect to any
particular transaction; and (E) the ownership, servicing or management of other
loans or properties not included in or securing, as the case may be, the
Mortgage Pool.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Interest Certificates evidencing a $1,000
denomination.
"Single Purpose Entity": For the purposes hereof, an entity, other
than an individual, whose organizational documents provide substantially to the
effect that it was formed or organized solely for the purpose of either owning
and operating the Mortgaged Property or Properties securing one or more Mortgage
Loans, or owning and pledging Defeasance Collateral in connection with the
defeasance of a Defeasance Loan, as the case may be, and prohibit it from
engaging in any business unrelated to such Mortgaged Property or Properties or
such Defeasance Collateral, as the case may be, and whose organizational
documents further provide substantially to the effect that it does not have any
assets other than those related to its interest in and operation of such
Mortgaged Property or such Defeasance Collateral, as the case may be, or any
indebtedness other than incidental to its ownership and operation of the
applicable Mortgaged Property or Properties or Defeasance Collateral, as the
case may be, that it has its own books and records and accounts separate and
apart from any other Person, that it holds itself out as a legal entity,
separate and apart from any other Person, and, in the case of such an entity
whose sole purpose is owning or operating a Mortgaged Property, that has an
independent director or, if such entity is a partnership or a limited liability
company, at least one general partner or limited liability company member
thereof, as applicable, which shall itself be a "single purpose entity" (having
as its sole asset its interest in the Single Purpose Entity) with an independent
director.
"Special Servicer": GMAC Commercial Mortgage Corporation or its
successor in interest, in its capacity as special servicer hereunder, or any
successor special servicer
<PAGE>
appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events has occurred:
(a) the related Mortgagor shall have failed to make any Monthly
Payment and such failure has continued unremedied for 60 days; or
(b) the Master Servicer shall have determined, in its good faith,
reasonable judgment, based on communications with the related Mortgagor,
that a default in the making of a Monthly Payment is likely to occur
within 30 days and is likely to remain unremedied for at least 60 days; or
(c) there shall have occurred a default (other than as described in
clause (a) above) that materially impairs the value of the Mortgaged
Property as security for the Mortgage Loan or otherwise materially
adversely affects the interests of Certificateholders and that continues
unremedied for the applicable grace period under the terms of the Mortgage
Loan (or, if no grace period is specified, for 30 days), other than a
default specified in the third paragraph of Section 3.26, so long as the
conditions therein are met; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force undischarged or unstayed for a period
of 60 days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable
<PAGE>
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan when a Liquidation Event has occurred with respect to such
Mortgage Loan, when the related Mortgaged Property has become an REO Property
or, so long as at such time no circumstance identified in clauses (a) through
(g) above exists that would cause the Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a)
above, the related Mortgagor has made three consecutive full
and timely Monthly Payments under the terms of such Mortgage
Loan (as such terms may be changed or modified in connection
with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed to by the Special Servicer pursuant to
Section 3.20);
(x) with respect to the circumstances described in clauses (b),
(d), (e) and (f) above, such circumstances cease to exist in
the good faith, reasonable judgment of the Special Servicer,
but, with respect to any bankruptcy or insolvency proceedings
described in clauses (d), (e) and (f), no later than the entry
of an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c)
above, such default is cured as determined by the Special
Servicer in its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (g)
above, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination as to whether a Servicing Transfer Event has occurred giving rise
to a Mortgage Loan becoming a Specially Serviced Mortgage Loan.
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC
III, the day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing
<PAGE>
Date), without regard to any change in or modification of such terms in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20 and, in the case
of an ARD Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), the Cut-off Date Balance of such Mortgage Loan, as
permanently reduced on each Distribution Date (to not less than zero) by (i)
that portion, if any, of the Principal Distribution Amount for such Distribution
Date allocable to such Mortgage Loan (or successor REO Loan), and (ii) the
principal portion of any Realized Loss incurred in respect of such Mortgage Loan
(or successor or REO Loan) during the related Collection Period. Notwithstanding
the foregoing, if a Liquidation Event occurs in respect of any Mortgage Loan or
REO Property, then the "Stated Principal Balance" of such Mortgage Loan or of
the related REO Loan, as the case may be, shall be zero commencing as of the
Distribution Date in the Collection Period next following the Collection Period
in which such Liquidation Event occurred.
"Subordinate Available Distribution Amount": With respect to any
Distribution Date, the excess, if any, of the Available Distribution Amount for
such Distribution Date, over the aggregate distributions, if any, to be made on
the Senior Certificates on such Distribution Date pursuant to Section 4.01(a).
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class R-I, Class
R-II or Class R-III Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury regulation section 1.860F-4(d) and temporary
Treasury regulation section 301.6231(a)(7)-1T, which Person shall be the
Plurality Residual Interest Certificateholder in respect of the related Class of
Residual Interest Certificates.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income
<PAGE>
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
REMIC I, REMIC II and REMIC III due to its classification as a REMIC under the
REMIC Provisions, and the federal income tax return to be filed on behalf of the
Grantor Trust due to its classification as a grantor trust under the Grantor
Trust Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the Internal Revenue Service under any applicable provisions of federal tax
law or any other governmental taxing authority under applicable state and local
tax law.
"Tenant": A tenant under a Credit Lease.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing of, by Transfer, any
Ownership Interest in a Certificate.
"Trust": The common law trust created hereunder.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II,
REMIC III and the Grantor Trust.
"Trustee": Norwest Bank Minnesota, National Association, or its
successor in interest, in its capacity as trustee hereunder, or any successor
trustee appointed as herein provided.
"Trustee Fee": With respect to each Distribution Date, an amount
equal to one-twelfth of the product of (i) the Trustee Fee Rate, multiplied by
(ii) the aggregate Stated Principal Balance of the Mortgage Pool outstanding
immediately prior to such Distribution Date.
"Trustee Fee Rate": 0.002% per annum.
"Trustee Liability": As defined in Section 8.05(b).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant
<PAGE>
to the UCC.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued during the related Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to such Distribution Date. With respect to any REMIC II
Regular Interest, for any Distribution Date, one month's interest at the REMIC
II Remittance Rate applicable to such REMIC II Regular Interest for such
Distribution Date, accrued during the related Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to such Distribution Date. Uncertificated Accrued Interest
shall accrue on a 30/360 Basis.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
the numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interest for such Distribution Date, and the denominator of
which is the aggregate Uncertificated Accrued Interest in respect of all the
REMIC I Regular Interests for such Distribution Date. With respect to any REMIC
II Regular Interest for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for such Distribution
Date, reduced (to not less than zero) by that portion, if any, of the Net
Aggregate Prepayment Interest Shortfall for such Distribution Date allocated to
such REMIC II Regular Interest as provided below. The portion, if any, of the
Net Aggregate Prepayment Interest Shortfall for any Distribution Date that is
allocated to any Class of Principal Balance Certificates or any Component of the
Class X Certificates in accordance with the definitions of "Distributable
Certificate Interest" and "Distributable Component Interest", respectively,
shall be deemed to have first been allocated to the Corresponding REMIC II
Regular Interest.
"Uncertificated Principal Balance": The principal amount of any
REMIC I Regular Interest or REMIC II Regular Interest outstanding as of any date
of determination. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Balance of the
related Mortgage Loan, and the Uncertificated Principal Balance of each REMIC II
Regular Interest shall equal the amount set forth in the Preliminary Statement
hereto as its initial Uncertificated Principal Balance. On each Distribution
Date, the Uncertificated Principal Balance of each REMIC II Regular Interest
shall be permanently reduced by all distributions of principal deemed to have
been made thereon on such Distribution Date pursuant to Section 4.01(j), and
shall be further permanently reduced on such Distribution Date by all Realized
Losses and Additional Trust Fund Expenses deemed to have been allocated thereto
on such Distribution Date pursuant to Section 4.04(b). On each Distribution
Date, the Uncertificated Principal Balance of each REMIC I Regular
<PAGE>
Interest shall be permanently reduced by all distributions of principal deemed
to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(k), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(c).
"Underwriter": Any of Lehman Brothers or Merrill Lynch.
"United States Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a) (30) of the Code.
"Unrestricted Servicer Reports": Each of the Delinquent Loan Status
Report, Historical Loan Modification Report, Historical Loss Estimate Report,
REO Status Report and Loan Payoff Notification Report.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 99% of the Voting Rights shall be allocated among the Holders
of the various Classes of the Principal Balance Certificates in proportion to
the respective Class Principal Balances of their Certificates, and 1% of the
Voting Rights shall be allocated to the Holders of the Class X Certificates.
Voting Rights allocated to a Class of Certificateholders shall be allocated
among such Certificateholders in standard proportion to the Percentage Interests
evidenced by their respective Certificates.
"Watch List Report": A report, substantially in the form of Exhibit
P attached hereto, identifying (as of the Determination Date occurring at least
two Business Days prior to the delivery of such report) each Mortgage Loan that
is not a Specially Serviced Mortgage Loan (i) with a Debt Service Coverage Ratio
of less than 1.05x, (ii) that has a Stated Maturity Date occurring in the next
sixty days, (iii) that is delinquent in respect of its real estate taxes, (iv)
for which any outstanding Advances exist, (v) that has been a Specially Serviced
Mortgage Loan in the past 90 days, (vi) for which the Debt Service Coverage
Ratio has decreased by more than 10% in the prior 12 months, (vii) for which any
lease relating to more than 25% of the related Mortgaged Property has expired,
been terminated, is in default or will expire within the next three months,
(viii) that is late in making its Monthly Payment three or more times in the
preceding twelve months, (ix) with material deferred maintenance at the related
Mortgaged Property, (x) that is 30 or more days delinquent, (xi) to the extent
the Master
<PAGE>
Servicer has actual knowledge thereof, with respect to which a tenant or tenants
occupying 20% or more of the gross leasable area of the related Mortgaged
Property are involved in bankruptcy or insolvency proceedings or have vacated
such Mortgaged Property (with no replacement tenant having occupied the space on
comparable terms) or (xii) in respect of which an inspection carried out
pursuant to Section 3.12(a) revealed a problem reasonably expected to adversely
affect the cash flow of the related Mortgaged Property. That the information in
such report is to be current as of the close of business on the Determination
Date occurring at least two (2) Business Days prior to the delivery of such
report is not intended to cause such report in respect of any Long Due Date
Mortgage Loan to always be current only as of the Determination Date in the
month prior to the month of delivery.
"Weighted Average REMIC I Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective REMIC I
Remittance Rates applicable to the REMIC I Regular Interests for such
Distribution Date, weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC I Regular Interests outstanding immediately
prior to such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to Section
3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as
to which a Workout Fee is payable, 1.0%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Mortgage Loan, the Master Servicer shall be required to follow the terms and
provisions contained in the applicable Mortgage Note, provided, however, in the
event the particular Mortgage Note shall not specify the U.S. Treasuries which
shall be used in determining the discount rate or the reinvestment yield to be
applied in such calculation, the Master Servicer shall be required to use those
U.S. Treasuries which shall generate the lowest discount rate or reinvestment
yield for the purposes thereof. Accordingly, if either no U.S. Treasury issue,
or more than one U.S. Treasury issue, shall coincide with the term over which
the Yield Maintenance Charge shall be calculated (which depending on the
applicable Mortgage Note is based on the remaining average life of the Mortgage
Loan or the actual term remaining through the Stated Maturity Date or
Anticipated Repayment Date), the Master Servicer shall use the applicable U.S.
Treasury whose reinvestment yield is the lowest, with such yield being based on
the bid price for such issue as published in The Wall Street Journal on the date
that is
<PAGE>
fourteen (14) days prior to the date that the Yield Maintenance Charge shall
become due and payable (or, if such bid price is not published on that date, the
next preceding date on which such bid price is so published) and converted to a
monthly compounded nominal yield. The monthly compounded nominal yield ("MEY")
is derived from the reinvestment yield or discount rate and shall be defined as
MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X 100, where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X [{(1+ .055/2) ^ 0.16667}-1]) X
100 where .055 is the decimal version of the percentage 5.5% and 0.16667 is the
decimal version of the exponential power. The MEY in the above calculation is
5.44%.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
<PAGE>
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and that such trust be
designated as "LB Commercial Mortgage Trust 1999-C1". Norwest Bank Minnesota,
National Association is hereby appointed, and does hereby agree, to act as
Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Depositor, concurrently with the execution and delivery hereof, does hereby
assign, sell, transfer, set over and otherwise convey to the Trustee in trust,
without recourse, for the benefit of the Certificateholders all the right, title
and interest of the Depositor, in, to and under (i) the Mortgage Loans, and (ii)
all other assets included or to be included in the Trust Fund. Such assignment
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans and due after the Cut-off Date. The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver and deposit with, or cause
the Mortgage Loan Sellers (pursuant to their respective Mortgage Loan Purchase
Agreements) to deliver to and deposit with, the Trustee or a Custodian appointed
thereby, on or before the Closing Date, the Mortgage File for each Mortgage Loan
so assigned, with copies of the Mortgage Notes, Mortgages and reserve agreements
for the Mortgage Loans to be delivered to the Master Servicer and the Special
Servicer. None of the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by a Mortgage Loan Seller or the
Depositor to comply with the document delivery requirements of the respective
Mortgage Loan Purchase Agreements and this Section 2.01(b).
(c) The Trustee shall, as to each Mortgage Loan, promptly (and in
any event within 45 days following the later of Closing Date and the date on
which the complete Mortgage File for such Mortgage Loan (including, without
limitation, all necessary recording and filing information) has been delivered
to the Trustee or its agent), at the Depositor's expense, submit for recording
or filing, as the case may be, in the appropriate public office for real
property records or UCC Financing Statements, as appropriate, each assignment of
Mortgage and assignment of Assignment of Leases, in favor of the Trustee
referred to in clause (iv) of the definition of "Mortgage File", and each UCC-2
and UCC-3 assignment in favor of the Trustee referred to in clause (viii) of the
definition of "Mortgage File." Each such assignment shall reflect that it should
be returned by the public recording office to the Trustee or its agent following
recording, and each such UCC-2 and UCC-3 assignment shall reflect that the file
copy thereof should be returned to the Trustee or its agent following filing;
provided that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases the
Trustee shall obtain therefrom a certified copy of the recorded original. On a
monthly basis, the Trustee shall forward to the Master Servicer a copy of each
of the aforementioned assignments
<PAGE>
following the Trustee's receipt thereof. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Depositor shall promptly prepare or cause to be prepared a
substitute therefor or cure such defect, as the case may be, and shall deliver
to the Trustee the substitute or corrected document (and the Trustee shall upon
receipt thereof cause the same to be duly recorded or filed, as appropriate).
(d) All documents and records in the possession of the Depositor or
either Mortgage Loan Seller that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof, together with all unapplied Escrow Payments and Reserve Funds in the
possession of the Depositor or either Mortgage Loan Seller that relate to the
Mortgage Loans, shall be delivered to the Master Servicer or such other Person
as may be directed by the Master Servicer (at the expense of the Depositor) on
or before the Closing Date and shall be held by the Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders.
(e) It is not intended that this Agreement create a partnership or a
joint-stock association.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and all documents delivered to it that constitute portions of
the related Mortgage Files and (ii) all other assets delivered to it and
included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
In connection with the foregoing, the Trustee hereby certifies to each of the
other parties hereto, each Mortgage Loan Seller and each Underwriter that, as to
each Mortgage Loan, except as specifically identified in the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Schedule II, (i) all
documents specified in clause (i) of the definition of "Mortgage File" are in
its possession or the possession of a Custodian on its behalf, and (ii) the
Mortgage Note received by it or any Custodian with respect to such Mortgage Loan
have been reviewed by it or by such Custodian on its behalf and (A) appears
regular on its face (handwritten additions, changes or corrections shall not
constitute irregularities if initialed by the Mortgagor), (B) appears to have
been executed (where appropriate) and (C) purports to relate to such Mortgage
Loan.
(b) On or about the 90th day following the Closing Date (and, if any
exceptions are noted, again on or about the 180th day following the Closing Date
and every 90 days thereafter until the earliest of (i) the second anniversary of
the Closing Date, (ii) the day
<PAGE>
on which all material exceptions have been removed and (iii) the day on which
the Depositor has repurchased the last affected Mortgage Loan), the Trustee or a
Custodian on its behalf shall review the documents delivered to it or such
Custodian with respect to each Mortgage Loan, and the Trustee shall, subject to
Sections 2.01, 2.02(c) and 2.02(d), certify in writing to each of the other
parties hereto, each Mortgage Loan Seller and each Underwriter substantially in
the form of Exhibit C hereto (with a copy to the Controlling Class
Certificateholders) that, as to each Mortgage Loan then subject to this
Agreement (except as specifically identified in any exception report annexed to
such certification): (i) all documents specified in clauses (i) through (v),
(vii) and (viii) (without regard to the second parenthetical in such clause
(viii)) of the definition of "Mortgage File" are in its possession or the
possession of a Custodian on its behalf; (ii) the recordation/filing
contemplated by Section 2.01(c) has been completed (based solely on receipt by
the Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Section 2.02(a) above and this Section
2.02(b) and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File. If the Trustee's obligation to
deliver the certifications contemplated in this subsection terminates because
two years have elapsed since the Closing Date, the Trustee shall deliver a
comparable certification to any party hereto, the Controlling Class
Representative and the Underwriters on request.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) In performing the reviews contemplated by Subsections (a) and
(b) above, the Trustee may conclusively rely on the Depositor as to the
purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), (vii) and (viii) of the definition of "Mortgage File" have been received
and such additional information as will be necessary for delivering the
certifications required by Subsections (a) and (b) above.
<PAGE>
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been properly executed, is
missing, contains information that does not conform in any material respect with
the corresponding information set forth in the Mortgage Loan Schedule, or does
not appear to be regular on its face (each, a "Document Defect"), or discovers
or receives notice of a breach of any representation or warranty of the
Depositor set forth in Section 2.04(b) (a "Breach"), and such Document Defect or
Breach, as the case may be, materially and adversely affects the interests of
the Certificateholders in, or the value of, any Mortgage Loan, such party shall
give prompt written notice thereof to each of the Rating Agencies, the related
Mortgage Loan Seller and the other parties hereto; provided, that, without
limiting any of the foregoing, the absence of a Mortgage Note, Mortgage or a
title insurance policy from a Mortgage File or any material nonconformity to the
Mortgage Loan Schedule of any such document or any material irregularity on the
face thereof (without the presence of any factor, such as a lost note affidavit
with an indemnity in the case of a missing Mortgage Note, that reasonably
mitigates such absence, non-conformity or irregularity) shall be a Document
Defect that materially and adversely affects the interests of the
Certificateholders in, or the value of, any Mortgage Loan, and shall obligate
the party discovering such to give the prompt notice contemplated in the
preceding clause, whereupon the Trustee shall notify the Depositor to cure such
Document Defect or, failing that, repurchase the related Mortgage Loan. Promptly
upon becoming aware of any such Document Defect or Breach that materially and
adversely affects the interests of the Certificateholders in, or the value of,
any Mortgage Loan (including through such written notice provided by any party
hereto, as provided above), the Depositor shall, not later than 90 days from the
earlier of the Depositor's discovery or receipt of notice of such Document
Defect or Breach, as the case may be (or, in the case of a Document Defect or
Breach relating to a Mortgage Loan not being a "qualified mortgage" within the
meaning of the REMIC Provisions, not later than 90 days of any party discovering
such Document Defect or Breach), cure the same in all material respects (which
cure shall include payment of losses and any Additional Trust Fund Expenses
associated therewith) or, if such Document Defect or Breach, as the case may be,
cannot be cured within such 90-day period, repurchase the affected Mortgage Loan
at the applicable Purchase Price by wire transfer of immediately available funds
to the Custodial Account; provided, however, that if (i) such Document Defect or
Breach is capable of being cured but not within such 90-day period, (ii) such
Document Defect or Breach is not related to any Mortgage Loan not being a
"qualified mortgage" within the meaning of the REMIC Provisions and (iii) the
Depositor has commenced and is diligently proceeding with the cure of such
Document Defect or Breach within such 90-day period, then the Depositor shall
have an additional 90 days to complete such cure or, in the event of a failure
to so cure, to complete such repurchase (it being understood and agreed that, in
connection with the Depositor receiving such additional 90-day period, the
Depositor shall deliver an Officer's Certificate to the Trustee setting forth
the reasons such Document Defect or Breach is not capable of being cured within
the initial 90-day period and what actions the
<PAGE>
Depositor is pursuing in connection with the cure thereof and stating that the
Depositor anticipates that such Document Defect or Breach will be cured within
such additional 90-day period; and provided, further, that if, any such Document
Defect is still not cured after the initial 90 days and any such additional
90-day period solely due to the failure of a recording office to have returned
the recorded document, then the Depositor shall be entitled to continue to defer
its cure and repurchase obligations in respect of such Document Defect so long
as the Depositor certifies to the Trustee every 30 days thereafter that the
Document Defect is still in effect solely because of the failure of a recording
office to have returned the recorded document and that the Depositor is
diligently pursuing the cure of such defect (specifying the actions being
taken), except that no such deferral of cure or repurchase may continue beyond
the second anniversary of the Closing Date. Notwithstanding the foregoing, the
delivery of a commitment to issue a policy of lender's title insurance in lieu
of the delivery of the actual policy of lender's title insurance shall not be
considered a Document Defect with respect to any Mortgage File if such actual
policy of insurance is delivered to the Trustee or a Custodian on its behalf not
later than the 90th day following the Closing Date.
(b) In connection with any repurchase of a Mortgage Loan pursuant to
this Section 2.03, the Trustee, the Custodian, the Master Servicer and the
Special Servicer shall each tender to the Depositor, upon delivery to each of
them of a receipt executed by the Depositor, all portions of the Mortgage File
and other documents pertaining to such Mortgage Loan possessed by it, and each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to the Depositor or its designee
in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which such documents
were previously assigned to the Trustee; provided that such tender by the
Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release and an Officer's Certificate to the effect that the
requirements for repurchase have been satisfied. The Master Servicer shall, and
is hereby authorized and empowered by the Trustee to, prepare (at the expense of
the Depositor), execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach with respect to any Mortgage Loan.
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents , warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Master
<PAGE>
Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either
<PAGE>
the ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans to
the Trust Fund pursuant to this Agreement, (A) the Depositor had good and
marketable title to, and was the sole owner and holder of, each Mortgage
Loan; and (B) the Depositor has full right and authority to sell, assign
and transfer the Mortgage Loans and all servicing rights pertaining
thereto.
(b) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, with respect to each
Mortgage Loan, as of the Closing Date or such other date specified in the
particular representation and warranty, that:
(i) The information pertaining to such Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date;
(ii) If such Mortgage Loan was originated by the related Mortgage
Loan Seller or another Affiliate of the Depositor, then, as of the date of
its origination, such Mortgage Loan complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan; and, if such Mortgage
Loan was not originated by the related Mortgage Loan Seller or another
Affiliate of the Depositor, then, to the best of the Depositor's knowledge
after having performed the type of due diligence customarily performed by
prudent institutional commercial and multifamily mortgage lenders, as of
the date of its origination, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal, state or
local law relating to the origination of such Mortgage Loan;
(iii) The Depositor owns such Mortgage Loan, has good and marketable
title thereto, has full right and authority to sell, assign and transfer
such Mortgage Loan and is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan, and no provision of the Mortgage Note,
Mortgage(s) or other loan documents relating to such Mortgage Loan
prohibits or restricts the Depositor's right to assign or transfer such
Mortgage Loan;
(iv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder;
(v) Each of the related Mortgage Note, Mortgage(s), Assignment(s) of
Leases, if any, and other agreements executed in connection therewith is
the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse
<PAGE>
provisions therein and any state anti-deficiency legislation), enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and a legal opinion to such effect was
obtained by the originator of such Mortgage Loan at the time of
origination;
(vi) As of the date of its origination, there was no valid offset,
defense, counterclaim or right to rescission with respect to any of the
related Mortgage Note, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-off Date, to the best knowledge
of the Depositor, there is no valid offset, defense, counterclaim or right
to rescission with respect to such Mortgage Note, Mortgage(s) or other
agreements;
(vii) The assignment of the related Mortgage(s) and Assignment(s) of
Leases to the Trustee constitutes the legal, valid, binding and
enforceable assignment of such documents in accordance with their
respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law);
(viii) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property and all buildings thereon and fixtures
thereto, which Mortgaged Property is free and clear of all encumbrances
and liens having priority over or on a parity with the first lien of such
Mortgage, except for (A) liens for real estate taxes and special
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage, such exceptions appearing of
record being customarily acceptable to mortgage lending institutions
generally or specifically reflected in the appraisal of such Mortgaged
Property made in connection with the origination of such Mortgage Loan,
and (C) other matters to which like properties are commonly subject (the
exceptions set forth in the foregoing clauses (A), (B) and (C)
collectively, "Permitted Encumbrances"); and such Permitted Encumbrances
do not, individually or in the aggregate, materially and adversely
interfere with the benefits of the security intended to be provided by
such Mortgage, materially and adversely interfere with the current use or
operation of the related Mortgaged Property or materially and adversely
affect the value or marketability of such Mortgaged Property or the
ability of the related Mortgagor to timely pay in full the principal and
interest on the related Mortgage Note. If the related Mortgaged Property
is operated as a nursing facility, a hospitality property or a multifamily
property, the related Mortgage, together with any separate security
agreement, chattel mortgage or similar agreement and UCC financing
statement, if any, establishes and creates a first priority, perfected
security
<PAGE>
interest (subject only to any prior purchase money security interest), to
the extent such security interest can be perfected by the recordation of a
Mortgage or the filing of a UCC financing statement, in all personal
property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property;
(ix) The related Mortgage Loan Seller has filed and/or recorded in
all appropriate public filing and recording offices all UCC-1 financing
statements necessary to create and perfect a security interest in and lien
on the items of personal property described therein (such description
being consistent with the practices of prudent commercial mortgage
lenders), which personal property includes, in the case of healthcare
facilities and hotel properties, all furniture, fixtures, equipment and
other personal property located at the subject Mortgaged Property that is
owned by the related Mortgagor and necessary or material to the operation
of the subject Mortgaged Property (or, if not filed and/or recorded, the
Mortgage Loan Seller has submitted such UCC-1 financing statements for
filing and/or recording and such UCC-1 financing statements are in form
and substance acceptable for filing and/or recording), to the extent
perfection may be effected pursuant to applicable law by recording or
filing;
(x) All taxes and governmental assessments that prior to the Cut-off
Date became due and owing in respect of, and affect, any related Mortgaged
Property have been paid, or an escrow of funds in an amount sufficient to
cover such payments has been established;
(xi) As of the date of its origination, there was no proceeding
pending for the total or partial condemnation of any related Mortgaged
Property that materially affects the value thereof, and each such
Mortgaged Property was free of material damage; and, as of the Cut-off
Date, the Depositor has not received any notice of the commencement of any
proceeding for the total or partial condemnation of any related Mortgaged
Property that materially affects the value thereof, and such Mortgaged
Property is free of material damage;
(xii) Each related Mortgaged Property is covered by an ALTA (or its
equivalent) lender's title insurance policy issued by a nationally
recognized title insurance company, insuring that each related Mortgage is
a valid first lien on such Mortgaged Property in the original principal
amount of such Mortgage Loan after all advances of principal, subject only
to Permitted Encumbrances, or there is a binding commitment from a title
insurer qualified and licensed in the applicable jurisdiction, as
required, to issue such policy; such title insurance policy, if issued, is
in full force and effect, all premiums have been paid, is freely
assignable and will inure solely to the benefit of the Trustee as
mortgagee of record, or any such commitment is a legal, valid and binding
obligation of such insurer; no claims have been made under such title
insurance policy, if issued; and to the best knowledge of the Depositor,
no prior mortgagee has done, by act or omission, anything which would
materially impair the
<PAGE>
coverage of any such title insurance policy;
(xiii) As of the date of its origination, all insurance required
under each related Mortgage, which insurance covered (except where a
Tenant under a Credit Lease is permitted to self-insure) such risks as
were customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, and with respect to a fire and extended perils
insurance policy, was in an amount (subject to a customary deductible) at
least equal to 100% of the full insurable replacement cost of the
improvements located on such Mortgaged Property (except to the extent not
permitted by applicable law and then in such event in an amount in excess
of the initial principal balance of such Mortgage Loan, together with an
"agreed value endorsement"), was in full force and effect with respect to
each related Mortgaged Property; and, as of the Cut-off Date, to the best
knowledge of the Depositor, all insurance required under each Mortgage,
which insurance covers (except where a Tenant under a Credit Lease is
permitted to self-insure) such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, is in full force and effect with respect to each
related Mortgaged Property; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the
Depositor; except for certain amounts not greater than amounts which would
be considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the related
Mortgage, any insurance proceeds in respect of a casualty loss or taking,
will be applied either to the repair or restoration of all or part of the
related Mortgaged Property or the reduction of the outstanding principal
balance of such Mortgage Loan;
(xiv) Other than payments due but not yet 30 days or more
delinquent, there is, to the best of the Depositor's knowledge, (A) no
material default, breach, violation or event of acceleration existing
under the related Mortgage Note or any related Mortgage, and (B) no event
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents; the
Depositor has not waived any other material default, breach, violation or
event of acceleration under any of such documents; and under the terms of
each Mortgage Loan, each related Mortgage Note, each related Mortgage and
the other loan documents in the related Mortgage File, no person or party
other than the mortgagee may declare an event of default or accelerate the
related indebtedness under such Mortgage Loan, Mortgage Note or Mortgage;
(xv) As of the Cut-off Date, such Mortgage Loan is not, and in the
prior 12
<PAGE>
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment;
(xvi) Such Mortgage Loan accrues interest on the basis of the actual
number of days elapsed over a 360-day year or on the basis of a 360-day
year consisting of twelve 30-day months; and such Mortgage Loan accrues
interest (payable monthly in arrears) at a fixed rate of interest (except
with respect to the ARD Loans, as to which the accrual rate for interest
increases after their respective Anticipated Repayment Dates, and except
in connection with the occurrence of a default and the accrual of default
interest);
(xvii) Each related Mortgage does not provide for or permit, without
the prior written consent of the holder of the Mortgage Note, any related
Mortgaged Property to secure any other promissory note or obligation
(other than another Mortgage Loan in the Trust Fund);
(xviii) Such Mortgage Loan is or constitutes part of a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date of origination or the Closing Date, the
fair market value of the real property securing such Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing such
Mortgage Loan was first reduced by the amount of any lien on such real
property that is senior to the lien that secures such Mortgage Loan, and
was further reduced by a proportionate amount of any lien that is on a
parity with the lien that secures such Mortgage Loan;
(xix) Prepayment Premiums and Yield Maintenance Charges payable with
respect to such Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(xx) One or more environmental site assessments were performed by an
environmental consulting firm independent of the Depositor and the
Depositor's Affiliates with respect to each related Mortgaged Property
during the 12-month period (or, if such Mortgage Loan is one of the
Mortgage Loans identified on Schedule III-A, more than 12 months)
preceding the Cut-off Date, and the Depositor, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no knowledge of any material and
adverse environmental condition or circumstance affecting such Mortgaged
Property that was not disclosed in such report(s); all such environmental
site assessments met ASTM requirements; and none of the environmental
reports reveal any circumstances or conditions that are in violation of
any applicable environmental laws, or if such report
<PAGE>
does reveal such circumstances, then (1) the same have been remediated in
all material respects, (2) sufficient funds have been escrowed for
purposes of effecting such remediation, (3) the related Mortgagor or other
responsible party is currently taking remedial or other appropriate action
to address the environmental issue, or (4) the cost of the environmental
issue relative to the value of such Mortgaged Property was de minimis;
(xxi) The related Mortgage Note, Mortgage(s) and Assignment(s) of
Leases, if any, contain customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property or Properties of the
benefits of the security, including realization by judicial or, if
applicable, non-judicial foreclosure, subject to applicable
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time, in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(xxii) To the best of the Depositor's knowledge, after due inquiry,
the related Mortgagor is not a debtor in any bankruptcy, reorganization,
insolvency or comparable proceeding;
(xxiii) Such Mortgage Loan is secured by either a mortgage on a fee
simple interest or a leasehold estate in a commercial property or
multifamily property, including the related Mortgagor's interest in the
improvements on the related Mortgaged Property;
(xxiv) Such Mortgage Loan does not provide for negative amortization
unless (A) such Mortgage Loan is an ARD Loan, in which case it may occur
only after the ARD Date or (B) such Mortgage Loan is one of the two
Mortgage Loans listed on Schedule III-B hereto in respect of which a
reserve sufficient to offset any negative amortization has been
established;
(xxv) Such Mortgage Loan is a whole loan, contains no equity
participation by the lender or shared appreciation feature and does not
provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property;
(xxvi) The related Mortgage contains provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if,
without the prior written consent of the mortgagee, any related Mortgaged
Property or interest therein, is directly or indirectly encumbered in
connection with subordinate financing; and no such consent has been
granted by the Depositor. To the Depositor's knowledge, no Mortgaged
Property is encumbered in connection with subordinate financing; however,
certain members of the Mortgagor listed on Schedule III-C hereto, are
known to have
<PAGE>
incurred debt secured by their ownership interest in the related
Mortgagor;
(xxvii) Except with respect to transfers of certain non-controlling
interests in the related Mortgagor as specified in the related Mortgage,
and except with respect to one or more transfers of the related Mortgaged
Property to a person that satisfies certain criteria (including criteria
related to bankruptcy remoteness and property management experience)
specified in the related Mortgage (which criteria is consistent with the
practices of prudent commercial mortgage lenders), each related Mortgage
contains either (A) provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if any related Mortgaged
Property or interest therein is directly or indirectly transferred or sold
without the prior written consent of the mortgagee, or (B) provisions for
the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the related Mortgagor
having satisfied certain conditions specified in the related Mortgage with
respect to permitted transfers (which criteria is consistent with the
practices of prudent commercial mortgage lenders);
(xxviii) Unless such Mortgage Loan is one of the Mortgage Loans
secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule as Starwood Financial, EAB Plaza, Woodland Hills Mall or Penn
Square Mall, such Mortgage Loan, together with any other Mortgage Loan
made to the same Mortgagor or to an Affiliate of such Mortgagor, does not
represent more than 5% of the aggregate Cut-off Date Balance of the
Mortgage Pool;
(xxix) Except as set forth in the related Mortgage File, the terms
of the related Mortgage Note, the related Mortgage(s) and any related loan
agreement and/or lock-box agreement have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner nor has any portion of a related Mortgaged Property been released
from the lien of the related Mortgage to an extent, which in any such
event materially interferes with the security intended to be provided by
such Mortgage;
(xxx) Each related Mortgaged Property was inspected by or on behalf
of the related originator during the six-month period prior to the related
origination date;
(xxxi) The terms of the related Mortgage Note or Mortgage do not
provide for the release of any material portion of the related Mortgaged
Property from the lien of such Mortgage without either (A) payment in full
of such Mortgage Loan or (B) delivery of defeasance collateral in the form
of U.S. government securities;
(xxxii) The related Mortgagor has covenanted in the Mortgage Loan
documents to maintain the related Mortgaged Property in compliance with
all
<PAGE>
applicable laws, zoning ordinances, rules, covenants and restrictions
affecting the construction, occupancy, use and operation of such Mortgaged
Property, and the related originator performed the type of due diligence
in connection with the origination of such Mortgage Loan customarily
performed by prudent institutional commercial and multifamily mortgage
lenders with respect to the foregoing matters; the Depositor has received
no notice of any material violation of any applicable laws, zoning
ordinances, rules, covenants or restrictions affecting the construction,
occupancy, use or operation of such Mortgaged Property; to the Depositor's
knowledge (based on surveys and/or title insurance obtained in connection
with the origination of such Mortgage Loan), no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay
outside the boundaries and building restriction lines of such property to
an extent which would have a material adverse affect on the related
Mortgagor's use and operation of such Mortgaged Property (unless
affirmatively covered by the title insurance referred to in paragraph
(xii) above), and no improvements on adjoining properties encroached upon
such Mortgaged Property to any material extent;
(xxxiii) Except with respect to Credit Lease Loans, the related
Mortgagor has covenanted in the Mortgage Loan documents to deliver each
year to the mortgagee an operating statement of each related Mortgaged
Property covering the twelve-month period identified therein;
(xxxiv) If such Mortgage Loan has a Cut-off Date Balance in excess
of 2.5% of the aggregate Cut-off Date Balance of the Mortgage Pool, the
related Mortgagor has covenanted in its organizational documents to be a
Single Purpose Entity for so long as such Mortgage Loan is outstanding,
and if such Mortgage Loan has a Cut-off Date Balance that is less than
specified in the preceding clause, the related Mortgagor has covenanted in
its organizational documents and/or the related Mortgage Loan documents to
own the related Mortgaged Property and no other material assets, except
such as are incidental to the ownership of such Mortgaged Property for so
long as such Mortgage Loan is outstanding;
(xxxv) No advance of funds has been made, directly or indirectly, by
the originator or the Depositor to the Mortgagor other than pursuant to
the Mortgage Note and no funds have been received from any person other
than such Mortgagor for or on account of payments due on the Mortgage
Note;
(xxxvi) To the Depositor's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor or the related
Mortgaged Property that, if determined adversely to such Mortgagor or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property or the ability of the Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan;
<PAGE>
(xxxvii) Such Mortgage Loan complied with or was exempt from all
applicable usury laws in effect at its date of origination;
(xxxviii) To the extent required under applicable law as of the
Closing Date, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held such Mortgage Loan to the extent
necessary to ensure the enforceability of such Mortgage Loan;
(xxxix) If the related Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, is properly designated
and serving under such Mortgage;
(xl) The related Mortgage Note is not secured by any collateral that
secures a mortgage loan that is not in the Trust Fund; if such Mortgage
Loan is cross-collateralized, it is cross-collateralized only with other
Mortgage Loans in the Trust Fund; and the security interest/lien on each
item of collateral for such Mortgage Loan has been assigned to the
Trustee;
(xli) The improvements on the related Mortgaged Property either are
not located in a flood hazard area as defined by the Federal Insurance
Administration or are covered by flood hazard insurance;
(xlii) Except with respect to Credit Lease Loans, one or more
engineering assessments were performed by an engineering consulting firm
independent of the Depositor and the Depositor's Affiliates with respect
to each related Mortgaged Property during the 12-month period preceding
(or, if such Mortgage Loan is one of the Mortgage Loans identified on
Schedule III-D, during the 20-month period preceding) the Cut-off Date,
and the Depositor, having made no independent inquiry other than to review
the report(s) prepared in connection with the assessment(s) referenced
herein, has no knowledge of any material and adverse engineering condition
or circumstance affecting such Mortgaged Property that was not disclosed
in such report(s); and to the extent such assessments revealed
deficiencies, deferred maintenance or similar conditions, either (A) the
estimated cost has been escrowed, (B) repairs have been made or (C) the
scope of the deferred maintenance relative to the value of such Mortgaged
Property was de minimis;
(xliii) All escrow deposits and payments relating to such Mortgage
Loan are under control of the Depositor or the servicer of such Mortgage
Loan and all amounts required as of the date hereof under the Mortgage
Loan documents to be deposited by the related Mortgagor have been
deposited;
<PAGE>
(xliv) The related Mortgagor has represented to the Depositor that
as of the date of origination of such Mortgage Loan, such Mortgagor, the
related lessee, franchisor or operator was in possession of all licenses,
permits and authorizations then required for use of the related Mortgaged
Property, which were valid and in full force and effect;
(xlv) The origination, servicing and collection practices used by
the Depositor or any prior holder of the Mortgage Note have been in all
respects legal and have met customary industry standards;
(xlvi) Except as set forth in Schedule III-E, such Mortgage Loan is
secured in whole or in part by a fee simple interest;
(xlvii) If such Mortgage Loan is secured in whole or in material
part by the interest of a Mortgagor as a lessee under a Ground Lease
(excluding the Mortgagor's interest under a Ground Lease in respect of the
Mortgaged Property identified on the Mortgage Loan Schedule as the Red
Lion Inn in Eugene Oregon) but not by the related fee interest, then,
except as indicated on Schedule III-F:
(A) Such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage or, if
consent of the lessor thereunder is required, it has been obtained
prior to the Closing Date;
(B) Upon the foreclosure of such Mortgage Loan (or acceptance
of a deed in lieu thereof), the Mortgagor's interest in such Ground
Lease is assignable to the Trustee without the consent of the lessor
thereunder (or, if any such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Trustee and its successors
without a need to obtain the consent of such lessor;
(C) Such Ground Lease may not be amended or modified without
the prior written consent of the mortgagee thereunder and that any
such action without such consent is not binding on such mortgagee,
its successors or assigns;
(D) Unless otherwise set forth in the Ground Lease, the Ground
Lease does not permit any increase in the amount of rent payable by
the ground lessee thereunder during the term of such Mortgage Loan;
(E) Such Ground Lease was in full force and effect as of the
date of origination of the related Mortgage Loan, and to the actual
knowledge of the Depositor, at the Closing Date, such Ground Lease
is in full force and
<PAGE>
effect; other than payments due but not yet 30 days or more
delinquent, (1) there is no material default, and (2) there is no
event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default under such Ground Lease;
(F) Such Ground Lease or an estoppel or consent letter
received by the mortgagee from the lessor, requires the lessor
thereunder to give notice of any default by the lessee to the
mortgagee; and such Ground Lease, or an estoppel or consent letter
received by the mortgagee from the lessor, further provides either
(1) that no notice of termination given under such Ground Lease is
effective against the mortgagee unless a copy has been delivered to
the mortgagee in the manner described in such Ground Lease, estoppel
or consent letter or (2) that upon any termination of the Ground
Lease the lessor will enter into a new lease with the mortgagee;
(G) The ground lessee's interest in the Ground Lease is not
subject to any liens or encumbrances superior to, or of equal
priority with, the related Mortgage, other than the related ground
lessor's related fee interest and any exceptions stated in the
related title insurance policy or opinion of title, which exceptions
do not and will not materially and adversely interfere with (1) the
ability of the related Mortgagor timely to pay in full the principal
and interest on the related Mortgage Note, (2) the use of such
Mortgaged Property for the use currently being made thereof, or (3)
the value of the Mortgaged Property;
(H) The mortgagee is permitted a reasonable opportunity to
cure any curable default under such Ground Lease before the lessor
thereunder may terminate or cancel such Ground Lease;
(I) Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth
therein) that extends not less than 10 years beyond the Stated
Maturity Date of the related Mortgage Loan;
(J) Under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee from the lessor and the
related Mortgage, taken together, any related insurance proceeds or
condemnation proceeds will be applied either to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses,
or to the payment of the outstanding principal balance of such
Mortgage Loan together with any accrued interest thereon;
<PAGE>
(K) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender;
(L) The ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease for any
reason, including the rejection of the Ground Lease in bankruptcy,
and for any reason, upon the request of the lender; and
(M) The terms of the related Ground Lease have not been
waived, modified, altered, satisfied, impaired, canceled,
subordinated or rescinded in any manner which materially interferes
with the security intended to be provided by such Mortgage;
(xlviii) If such Mortgage Loan is secured in whole or in part by the
interest of the related mortgagor under a Ground Lease and by the related
fee interest, such fee interest is subject, and subordinated of record, to
the related Mortgage, and such Mortgage does not by its terms provide that
it will be subordinated to the lien of any other mortgage or other lien
upon such fee interest;
(xlix) Each related Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the
related title insurance policy;
(l) (1) If such Mortgage Loan is a Defeasance Loan, the related
Mortgage Loan documents either: (A) require the prior written consent of,
and compliance with the conditions set by, the holder of such Mortgage
Loan for defeasance, (B) require that (1) defeasance may not occur prior
to the second anniversary of the Closing Date, (2) the Defeasance
Collateral be sufficient to make all scheduled payments under the Mortgage
Note when due (assuming for each ARD Loan that it matures on its
Anticipated Repayment Date), (3) an independent accounting firm certify
that the Defeasance Collateral is sufficient to make such payments, (4)
the Mortgage Loan be assumed by a Single-Purpose Entity designated by the
holder of such Mortgage Loan, and (5) counsel provide an opinion letter to
the effect that the Trustee has a perfected security interest in such
Defeasance Collateral prior to any other claim or interest, or (C) provide
that the defeasance of such Mortgage Loan is subject to rating
confirmation by the Rating Agencies;
(li) No Person has been granted or conveyed the right to service
such Mortgage Loan or receive any consideration in connection therewith
except as contemplated in this Agreement;
(lii) To the Depositor's knowledge, (A) the related Mortgaged
Property is free and clear of any and all mechanics' and materialmen's
liens that are not bonded or escrowed for, and (B) no rights are
outstanding that under law could give rise to any
<PAGE>
such lien that would be prior or equal to the lien of the related
Mortgage. The Depositor has not received actual notice with respect to
such Mortgage Loan that any mechanics' and materialmen's liens have
encumbered such Mortgaged Property since origination that have not been
released, bonded or escrowed for;
(liii) Such Mortgage Loan bears interest at a Mortgage Rate that
remains fixed throughout the remaining term of such Mortgage Loan unless
such Mortgage Loan is an ARD Loan in which case its Mortgage Rate
increases by its Additional Interest Rate after its Anticipated Repayment
Date;
(liv) If such Mortgage Loan is secured in whole or in part by the
interest of the related Mortgagor under a Ground Lease and by the related
fee interest, then upon occurrence of a default under the terms of the
related Mortgage by the Mortgagor, the mortgagee has the right to
foreclose upon or otherwise exercise its rights with respect to such fee
interest.
(lv) If such Mortgage Loan is a Credit Lease Loan:
(A) the lease payments due under the related Credit Lease,
together with any escrow payments held by the Depositor or its
designee, are equal to or greater than the payments due with respect
to the related Mortgage Loan (or an escrow has been established to
cover the difference);
(B) the Mortgagor does not have monetary obligations under the
related Credit Lease, and every monetary obligation associated with
managing, owning, developing and operating the leased property,
including, but not limited to, the costs associated with utilities,
taxes, insurance, maintenance and repairs is an obligation of the
related Tenant, except for those monetary obligations that have been
reserved for.
(C) The Mortgagor does not have any nonmonetary obligations
under the related Credit Lease, except for the delivery of
possession of the leased property;
(D) The Mortgagor has not made any representation or warranty
in the related Credit Lease, a breach of which would result in the
termination of, or an offset or abatement with respect to, such
Credit Lease;
(E) The related Tenant cannot terminate or abate rental
payments under such Credit Lease for any reason prior to the payment
in full of: (1) the principal balance of the related Mortgage Loan;
(2) all accrued and unpaid interest on such Mortgage Loan; and (3)
any other sums due and payable under such Mortgage Loan, as of the
termination date, which date is a rent payment
<PAGE>
date, except for a material default by the related Mortgagor under
the Credit Lease or due to a casualty or condemnation event, in
which case, a Lease Enhancement Policy insures against each such
risk;
(F) In the event the related Tenant assigns or sublets the
related leased property, such Tenant (and if applicable, the related
guarantor) remains obligated under the related Credit Lease;
(G) Except with respect to the Credit Lease Loans listed in
Schedule III-G hereto, the related Tenant has agreed to indemnify
the Mortgagor from any claims of any nature other than the acts or
omissions of the related Mortgagor, (1) to which the Mortgagor is
subject because of such Mortgagor's estate in the leased property,
or (2) arising from (I) injury to or death of any person or damage
to or loss of property on the leased property or connected with the
use, condition or occupancy of the leased property, (II) Tenant's
violation of the related Credit Lease, or (III) any act or omission
of the Tenant;
(H) Except with respect to the Mortgage Loans listed in
Schedule III-G hereto, the related Tenant has agreed to indemnify
the Mortgagor from any claims of any nature arising as a result of
any hazardous material affecting the leased property and due to such
Tenant's use of the leased property;
(I) In the event the related Credit Lease is accompanied by a
guaranty from the related Rated Party, such guaranty is legal, valid
and binding against such Rated Party, and such Rated Party has also
executed or acknowledged in writing, with respect to the Mortgage, a
subordination and non-disturbance agreement; such guaranty is
unconditional, irrevocable and absolute, without any right of
offset, counterclaim or defense; such guaranty provides that it is a
guaranty of both the performance and payment of the financial
obligations of the related Tenant, and not only of collection; and
such guaranty is binding on the related Rated Party, its successors
and assigns and may not be amended or released without the
mortgagee's consent;
(J) With respect to Credit Lease Loans that have the benefit
of Residual Value Insurance Policies and Lease Enhancement Policies,
each such policy has been obtained, and with respect to the Credit
Leases other than bond-type leases, the required premiums have been
paid; any such related Lease Enhancement Policy and Residual Value
Insurance Policy is a non-cancelable (subject to customary
exceptions) policy;
(K) The list of lease guarantors, if any, attached as Schedule
III-G hereto, is accurate in all material respects;
<PAGE>
(L) No default by the related Mortgagor or Tenant has occurred
under the related Credit Lease, and, to the Depositor's knowledge,
there is no existing condition which, but for the passage of time or
the giving of notice, or both, would result in a default under the
terms of such Credit Lease;
(M) The related Credit Lease is in full force and effect, and
is a legal, valid, binding and (subject to the exceptions set forth
in paragraph (vii) above) enforceable agreement of the related
Tenant;
(N) No Person owns any interest in any payments due under the
related Credit Lease other than the Mortgagor and the Depositor
(which interest is being conveyed hereunder);
(O) The related Tenant has agreed to notify the mortgagee of
any default under the related Credit Lease and to provide the
mortgagee with additional time and opportunity to cure;
(P) Such Credit Lease Loan provides that the related Credit
Lease cannot be modified without the consent of the mortgagee
thereunder;
(Q) There is no right of rescission, offset, abatement,
diminution, defense or counterclaim to the related Credit Lease, nor
will the operation of any of the terms of such Credit Lease, or the
exercise of any rights thereunder, render such Credit Lease
unenforceable, in whole or in part, or subject to any right of
rescission, offset, abatement, diminution, defense or counterclaim;
(R) The related Tenant is required under such Credit Lease
Loan to make all rental payments directly to the mortgagee, its
successors and assigns;
(S) The related Credit Lease contains customary and
enforceable provisions which render the rights and remedies of the
lessor thereunder adequate for the enforcement and satisfaction of
the lessor's rights thereunder;
(T) The related Credit Lease has an original term ending on or
after the final maturity of such Credit Lease Loan (except that in
certain cases the term of such Credit Lease may expire up to 30 days
prior to the term of the Credit Lease Loan); and
(U) Such Credit Lease Loan is fully-amortizing over its
original term; and
(lvi) Except as set forth in Schedule III-H, the Due Date for each
<PAGE>
Mortgage Loan is scheduled to be the first day of the month;
(lvii) The related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and
expenses incurred by the mortgagee, including lender's attorneys' fees and
expenses, in connection with the defeasance or assumption of such Mortgage
Loan; and
(lviii) Subject only to Permitted Encumbrances, the related
Assignment of Leases set forth in or separate from the related Mortgage
and delivered in connection with such Mortgage Loan establishes and
creates a valid and, subject only to the exceptions in paragraph (vii)
above, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases,
licenses or other agreements pursuant to which any Person is entitled to
occupy, use or possess all or any portion of the Mortgaged Property
subject to the related Mortgage, and each assignor thereunder has the full
right to assign the same.
(c) The representations, warranties and covenants of the Depositor set
forth in Section 2.04(a) and Section 2.04(b) shall survive the execution and
delivery of this Agreement and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust Fund remains in existence.
Upon discovery by any party hereto of any breach of any of such representations,
warranties and covenants, the party discovering such breach shall give prompt
written notice thereof to the other parties.
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in the Trust Fund. Concurrently with such assignment and in exchange
therefor, (a) the REMIC I Regular Interests have been issued, and (b) pursuant
to the written request of the Depositor executed by an officer thereof, the
Trustee, as Certificate Registrar, has executed, and the Trustee, as
Authenticating Agent, has authenticated and delivered to or upon the order of
the Depositor, the Class R-I Certificates in authorized denominations. The
interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II (as holder of the REMIC
I Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Certificates and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Certificates and the REMIC I Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and
<PAGE>
delivery of this Agreement, does hereby assign without recourse all the right,
title and interest of the Depositor in and to the REMIC I Regular Interests to
the Trustee for the benefit of the Holders of the Class R-II Certificates and
REMIC III as the holder of the REMIC II Regular Interests. The Trustee
acknowledges the assignment to it of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Holders of the Class R-II Certificates and REMIC III
as the holder of the REMIC II Regular Interests.
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, (a) the REMIC II Regular Interests
have been issued and (b) pursuant to the written request of the Depositor
executed by an officer thereof, the Trustee, as Certificate Registrar, has
executed, and the Trustee, as Authenticating Agent, has authenticated and
delivered to or upon the order of the Depositor, the Class R-II Certificates in
authorized denominations. The rights of the Class R-II Certificateholders and
REMIC III (as holder of the REMIC II Regular Interests) to receive distributions
from the proceeds of REMIC II in respect of the Class R-II Certificates and the
REMIC II Regular Interests, respectively, and all ownership interests evidenced
or constituted by the Class R-II Certificates and the REMIC II Regular
Interests, shall be as set forth in this Agreement.
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests and in exchange therefor, pursuant to the written request of
the Depositor executed by an officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. The rights of the Holders of the respective Classes of
REMIC III Certificates to receive distributions from the proceeds of REMIC III
in respect of their REMIC III Certificates, and all ownership interests
evidenced or constituted by the respective Classes
<PAGE>
of REMIC III Certificates in such distributions, shall be as set forth in this
Agreement.
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, for the benefit
of the Certificateholders, as determined in the good faith and reasonable
judgement of the Master Servicer or the Special Servicer, as the case may be, in
accordance with any and all applicable laws, the terms of this Agreement, the
respective Mortgage Loans and (in the case of the Credit Lease Loans) any
Residual Value Insurance Policies or Lease Enhancement Policies and, to the
extent consistent with the foregoing, in accordance with the Servicing Standard.
The Master Servicer or the Special Servicer, as applicable in accordance with
this Agreement, shall service and administer each Cross-Collateralized Group as
a single Mortgage Loan as and when necessary and appropriate consistent with the
Servicing Standard. Without limiting the foregoing, and subject to Section 3.21,
(i) the Master Servicer shall service and administer all Mortgage Loans that are
not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall
service and administer each Specially Serviced Mortgage Loan and REO Property
and shall render such services with respect to all Mortgage Loans and REO
Properties as are specifically provided for herein. All references herein to the
respective duties of the Master Servicer and the Special Servicer, and to the
areas in which they may exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11 (taking account of
Section 6.11(b)), the Master Servicer and the Special Servicer shall each have
full power and authority, acting alone, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, each
of the Master Servicer and the Special Servicer, in its own name, with respect
to each of the Mortgage Loans it is obligated to service hereunder, is hereby
authorized and empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) in accordance with the Servicing Standard and subject to Section 3.20 and
Section 6.11 (taking account of Section 6.11(b)), any and all modifications,
waivers, amendments or consents to or with respect to any documents contained in
the related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments. Subject to Section 3.10, the Trustee shall, at the
written request of the Master Servicer or the Special Servicer, promptly execute
any limited powers of attorney and other documents furnished by the Master
Servicer or the Special Servicer that are necessary or appropriate to
<PAGE>
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard. The Special Servicer shall ensure that with respect to Specially
Serviced Mortgage Loans, the Mortgagors make payments directly to the Master
Servicer. Upon receipt of payments with respect to Mortgage Loans, the Master
Servicer shall promptly notify the Special Servicer, and the Special Servicer
shall direct the Master Servicer as to the proper posting of such payment.
Consistent with the foregoing, the Special Servicer, with regard to a Specially
Serviced Mortgage Loan, or the Master Servicer, with regard to a Mortgage Loan
that is not a Specially Serviced Mortgage Loan, may waive or defer any Default
Interest or late payment charge in connection with any payment on a Mortgage
Loan; provided that, without the consent of the Special Servicer in the case of
a proposed waiver by the Master Servicer, no such waiver or deferral may be made
by the Master Servicer pursuant to this Section 3.02 if any Advance has been
made as to such delinquent payment.
(b) All amounts collected in respect of any Cross-Collateralized
Group in the form of payments from Mortgagors, Insurance Proceeds and
Liquidation Proceeds, shall be applied by the Master Servicer among the Mortgage
Loans constituting such Cross-Collateralized Group in accordance with the
express provisions of the related loan documents and, in the absence of such
express provisions, on a pro rata basis in accordance with the respective
amounts then "due and owing" as to each such Mortgage Loan. All amounts
collected in respect of or allocable to any particular Mortgage Loan (whether or
not such Mortgage Loan constitutes part of a Cross-Collateralized Group) in the
form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage Note
and Mortgage and, in the absence of such express provisions, shall be applied
for purposes of this Agreement: first, as a recovery of any related and
unreimbursed Servicing Advances; second, as a recovery of accrued and unpaid
interest on such Mortgage Loan at the related Mortgage Rate to, but not
including, the date of receipt (or, in the case of a full Monthly Payment from
any Mortgagor, through the related Due Date), exclusive, however, in the case of
an ARD Loan after its Anticipated Repayment Date, of any such accrued and unpaid
interest that constitutes Additional Interest; third, as a recovery of
<PAGE>
principal of such Mortgage Loan then due and owing, including by reason of
acceleration of the Mortgage Loan following a default thereunder (or, if a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of principal to the extent of its entire remaining unpaid principal balance);
fourth, unless a Liquidation Event has occurred with respect to such Mortgage
Loan, as a recovery of amounts to be currently applied to the payment of, or
escrowed for the future payment of, real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items; fifth, unless a
Liquidation Event has occurred with respect to such Mortgage Loan, as a recovery
of Reserve Funds to the extent then required to be held in escrow; sixth, as a
recovery of any Prepayment Premium or Yield Maintenance Charge then due and
owing under such Mortgage Loan; seventh, as a recovery of any Default Interest
and late payment charges then due and owing under such Mortgage Loan; eighth, as
a recovery of any assumption fees and modification fees then due and owing under
such Mortgage Loan; ninth, as a recovery of any other amounts then due and owing
under such Mortgage Loan (other than remaining unpaid principal and, in the case
of an ARD Loan after its Anticipated Repayment Date, other than Additional
Interest); tenth, as a recovery of any remaining principal of such Mortgage Loan
to the extent of its entire remaining unpaid principal balance; and, eleventh,
in the case of an ARD Loan after its Anticipated Repayment Date, as a recovery
of accrued and unpaid Additional Interest on such ARD Loan to but not including
the date of receipt.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain one or more accounts (the "Servicing Accounts"), in which all
Escrow Payments shall be deposited and retained. Subject to the terms of the
related Mortgage Loan documents, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected from a Servicing Account may be
made (to the extent of amounts on deposit therein in respect of the related
Mortgage Loan or, in the case of clauses (iv) and (v), to the extent of interest
or other income earned on such amounts) only to: (i) effect payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
comparable items in respect of the respective Mortgaged Properties; (ii)
reimburse the Master Servicer, the Special Servicer or the Trustee for any
Servicing Advances made to cover any of the items described in the immediately
preceding clause (i); (iii) refund to Mortgagors any sums as may be determined
to be overages; (iv) pay interest, if required and as described below, to
Mortgagors on balances in the Servicing Account; (v) pay the Master Servicer
interest and investment income on balances in the Servicing Account as described
in Section 3.06(b), if and to the extent not required by law or the terms of
Mortgage Loan to be paid to the Mortgagor; or (vi) clear and terminate the
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. To the extent permitted by law or the applicable Mortgage Loan,
funds in the Servicing Accounts may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. The Master Servicer shall pay or
cause to be paid to the Mortgagors interest, if any, earned on the investment of
funds in Servicing Accounts
<PAGE>
maintained thereby, if required by law or the terms of the related Mortgage
Loan. If the Master Servicer shall deposit in a Servicing Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Servicing Account, any provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Mortgage Loan,
(i) maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, for the Mortgage Loans that require
the related Mortgagor to escrow for such items, shall effect payment thereof
prior to the applicable penalty or termination date. For purposes of effecting
any such payment for which it is responsible, the Master Servicer shall apply
Escrow Payments as allowed under the terms of the related Mortgage Loan (or, if
such Mortgage Loan does not require the related Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Master Servicer shall use reasonable efforts
consistent with the Servicing Standard to cause the related Mortgagor to comply
with the requirement of the related Mortgage that the Mortgagor make payments in
respect of such items at the time they first become due and, in any event, prior
to the institution of foreclosure or similar proceedings with respect to the
related Mortgaged Property for nonpayment of such items). Subject to Section
3.03(e), the Master Servicer shall timely make a Servicing Advance to cover any
such item which is not so paid, including any penalties or other charges arising
from the Mortgagor's failure to timely pay such items.
(c) The Master Servicer shall, as to each and every Mortgage Loan,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies, in each
instance if and to the extent Escrow Payments (if any) collected from the
related Mortgagor are insufficient to pay such item when due and the related
Mortgagor has failed to pay such item on a timely basis. All such Servicing
Advances shall be reimbursable in the first instance from related collections
from the Mortgagors, and further as provided in Section 3.05(a). No costs
incurred by the Master Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of the Mortgaged
Properties shall, for purposes of this Agreement, including, without limitation,
the Trustee's calculation of monthly distributions to Certificateholders, be
added to the unpaid Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit. The foregoing
shall in no way limit the Master Servicer's ability to charge and collect from
the Mortgagor such costs together with interest thereon.
If the Master Servicer or Special Servicer is required under any
provision of this Agreement (including, but not limited to, this Section
3.03(c)) to make a Servicing
<PAGE>
Advance, but neither does so within 15 days after such Advance is required to be
made, the Trustee shall, if it has actual knowledge of such failure on the part
of the Master Servicer or Special Servicer, as the case may be, give written
notice of such failure, as applicable, to the Master Servicer or the Special
Servicer. If such Servicing Advance is not made by the Master Servicer or the
Special Servicer within three Business Days after such notice is given to the
Master Servicer or the Special Servicer, as applicable, then (subject to a
determination that such Servicing Advance would, if made, be a Nonrecoverable
Servicing Advance) the Trustee shall make such Servicing Advance. Any failure by
the Master Servicer or the Special Servicer to make a Servicing Advance
(excluding Servicing Advances determined to be Nonrecoverable Servicing Advances
prior to the Master Servicer's or the Special Servicer's, as the case may be,
refusal to make such Servicing Advance) hereunder shall constitute an Event of
Default by the Master Servicer or the Special Servicer, as the case may be,
subject to and as provided in Section 7.01.
(d) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, compounded annually, accrued on the amount of each Servicing
Advance made thereby (with its own funds) for so long as such Servicing Advance
is outstanding, such interest to be payable: (i) out of late payment charges and
Default Interest collected (A) on or in respect of the particular Mortgage Loan
or REO Property as to which such Servicing Advance relates and (B) during the
same Collection Period in which such Servicing Advance is reimbursed; and (ii)
to the extent that such late payment charges and Default Interest are
insufficient, but not before the related Advance has been reimbursed pursuant to
this Agreement, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Custodial Account. The Master Servicer shall
reimburse itself, the Special Servicer or the Trustee, as appropriate and in
accordance with Section 3.05(a), for any Servicing Advance as soon as
practicable after funds available for such purpose are deposited in the
Custodial Account.
(e) None of the Master Servicer, the Special Servicer or the Trustee
shall be required to make out of its own funds any Servicing Advance that would,
if made, constitute a Nonrecoverable Servicing Advance. The determination by
either the Master Servicer or the Special Servicer that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officers'
Certificate delivered promptly to the Trustee and the Depositor, setting forth
the basis for such determination, together with a copy of any appraisal of the
related Mortgaged Property or REO Property, as the case may be (which appraisal
shall be an expense of the Trust and shall take into account the factors
specified in Section 3.18(e) and shall have been conducted by an Independent
Appraiser in accordance with the standards of the Appraisal Institute, within
the twelve months preceding such determination of nonrecoverability), and
further accompanied by related Mortgagor operating statements and financial
statements, budgets and rent rolls of the related Mortgaged Property (to the
extent available and/or in the Master Servicer's or the Special Servicer's
possession) and any engineers' reports, environmental surveys or similar
<PAGE>
reports that the Master Servicer or the Special Servicer may have obtained and
that support such determination. If the Master Servicer intends to obtain an
appraisal in connection with the foregoing, the Master Servicer shall so notify
the Special Servicer and consult with the Special Servicer regarding such
appraisal. The Trustee shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a Servicing
Advance, if made, would be a Nonrecoverable Advance; provided, however, that if
the Master Servicer or the Special Servicer has failed to make a Servicing
Advance for reasons other than a determination by the Master Servicer or the
Special Servicer, as applicable, that such Servicing Advance would be a
Nonrecoverable Advance, the Trustee shall make such Servicing Advance within the
time periods required by Section 3.03(c) unless the Trustee, in good faith,
makes a determination that such Servicing Advance would be a Nonrecoverable
Advance.
Notwithstanding anything set forth herein to the contrary, however,
the Master Servicer shall (at the direction of the Special Servicer if a
Specially Serviced Mortgage Loan or an REO Property is involved) pay directly
out of the Custodial Account any servicing expense that, if advanced by the
Master Servicer or the Special Servicer, would constitute a Nonrecoverable
Servicing Advance; provided that the Master Servicer (or the Special Servicer,
if a Specially Serviced Mortgage Loan or an REO Property is involved) has
determined in accordance with the Servicing Standard that making such payment is
in the best interests of the Certificateholders (as a collective whole), as
evidenced by an Officer's Certificate delivered promptly to the Trustee, the
Depositor and the Controlling Class Representative, setting forth the basis for
such determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
(f) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related repairs, capital improvements and/or
environmental remediation at the related Mortgaged Property if the repairs,
capital improvements and/or environmental remediation have been completed, and
such withdrawals are made in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any other agreement with the
related Mortgagor governing such Reserve Funds and (ii) to pay the Master
Servicer interest and investment income earned on amounts in the Reserve
Accounts as described below. To the extent permitted in the applicable Mortgage,
funds in the Reserve Accounts may be invested in Permitted Investments in
accordance with the provisions of Section 3.06. Subject to the related Mortgage
Loan documents, all Reserve Accounts shall be Eligible
<PAGE>
Accounts. Consistent with the Servicing Standard, the Master Servicer may waive
or extend the date set forth in any agreement governing such Reserve Funds by
which the required repairs, capital improvements and/or environmental
remediation at the related Mortgaged Property must be completed; provided that
any waiver, any extension for more than 120 days and any subsequent extension
may only be granted with the consent of the Special Servicer.
SECTION 3.04. Custodial Account, Defeasance Deposit Account,
Collection Account and Interest Reserve Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Custodial Account"), in which the amounts
described in clauses (i) through (viii) below shall be deposited and held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Custodial Account, within one Business
Day of receipt (in the case of payments by Mortgagors or other collections on
the Mortgage Loans) or as otherwise required hereunder, the following payments
and collections received or made by the Master Servicer or on its behalf
subsequent to the Cut-off Date (other than in respect of principal and interest
on the Mortgage Loans due and payable on or before the Cut-off Date, which
payments shall be delivered promptly to the Depositor or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse,
and other than amounts required to be deposited in the Defeasance Deposit
Account), or payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans,
including, without limitation, Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
including, without limitation, Default Interest and Additional Interest,
and late payment charges;
(iii) all Prepayment Premiums and Yield Maintenance Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
that portion of the Liquidation Proceeds described in clause (vi) of the
definition thereof that are required to be deposited in the Collection
Account pursuant to Section 9.01) received in respect of any Mortgage
Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a
<PAGE>
deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees need not be
deposited by the Master Servicer in the Custodial Account. If the Master
Servicer shall deposit in the Custodial Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Custodial
Account, any provision herein to the contrary notwithstanding. The Master
Servicer shall promptly deliver to the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), all assumption fees
and assumption application fees (or the applicable portions thereof) and other
transaction fees received by the Master Servicer to which the Special Servicer
is entitled pursuant to such section upon receipt of a written statement of a
Servicing Officer of the Special Servicer describing the item and amount (unless
pursuant to this Agreement it is otherwise clear that the Special Servicer is
entitled to such amounts, in which case a written statement is not required).
The Custodial Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage-backed securities of other series
and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to any Mortgage Loan, the Special Servicer
shall promptly, but in no event later than two Business Days after receipt,
remit such amounts to the Master Servicer for deposit into the Custodial Account
in accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer, unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item cannot be so endorsed and
delivered because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
shall be deposited by the Special Servicer into the REO Account and remitted to
the Master Servicer for deposit into the Custodial Account pursuant to Section
3.16(c).
If and when any Mortgagor under a Defeasance Loan elects to defease
all or
<PAGE>
any part of its Mortgage Loan and delivers cash to the Master Servicer to
purchase the required Defeasance Collateral, the Master Servicer shall establish
and maintain one or more separate segregated accounts (collectively, the
"Defeasance Deposit Account"), in which the Master Servicer shall deposit such
cash within one Business Day of receipt by the Master Servicer. The Master
Servicer shall retain such cash in the Defeasance Deposit Account pending its
prompt application to purchase Defeasance Collateral. The Master Servicer shall
hold such cash and maintain the Defeasance Deposit Account on behalf of the
Trustee to secure payment on the related Defeasance Loan. The Defeasance Deposit
Account shall be an Eligible Account. To the extent permitted by law or the
applicable Defeasance Loan, prior to the purchase of Defeasance Collateral,
funds in the Defeasance Deposit Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall pay or cause to be paid to the related Mortgagor(s) interest, if
any, earned on the investment of funds in the Defeasance Deposit Account, if
required by law or the terms of the related Mortgage Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Collection Account") to be held in trust for the
benefit of the Certificateholders. The Collection Account shall be an Eligible
Account. The Master Servicer shall deliver to the Trustee each month on or
before the P&I Advance Date therein, for deposit in the Collection Account, an
aggregate amount of immediately available funds equal to that portion of the
Available Distribution Amount (calculated without regard to clause (b)(ii)(B) of
the definition thereof) for the related Distribution Date then on deposit in the
Custodial Account, together with (i) any Prepayment Premiums or Yield
Maintenance Charges received on the Mortgage Loans during the related Collection
Period, (ii) any Additional Interest collected on any ARD Loan after its
Anticipated Repayment Date and (iii) in the case of the final Distribution Date,
any additional amounts contemplated by the second paragraph of Section 9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Collection Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses realized on Permitted
Investments with respect to funds held in the Collection Account;
(iii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls; and
(iv) the Purchase Price paid in connection with the purchase by the
Master Servicer of all of the Mortgage Loans and any REO Properties
pursuant to Section
<PAGE>
9.01, exclusive of the portion of such amounts required to be deposited in
the Custodial Account pursuant to Section 9.01.
The Trustee shall, upon receipt, deposit in the Collection Account
any and all amounts received by the Trustee that are required by the terms of
this Agreement to be deposited therein.
On the P&I Advance Date in March of each year (commencing in March
2000), the Trustee shall transfer from the Interest Reserve Account to the
Collection Account all Interest Reserve Amounts then on deposit in the Interest
Reserve Account with respect to the Interest Reserve Loans.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On each Distribution Date in
February and, during a year that is not a leap year, in January, prior to any
distributions being made in respect of the Certificates on such Distribution
Date, the Trustee shall withdraw from the Collection Account and deposit in the
Interest Reserve Account with respect to each Interest Reserve Loan, an amount
equal to the Interest Reserve Amount, if any, in respect of such Interest
Reserve Loan for such Distribution Date.
(d) Funds in the Custodial Account, the Collection Account and the
Interest Reserve Account (other than Additional Interest received in respect of
the ARD Loans after their respective Anticipated Repayment Dates) may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06. The Master Servicer shall give notice to the Trustee, the Special
Servicer and the Rating Agencies of the location of the Custodial Account as of
the Closing Date and of the new location of the Custodial Account prior to any
change thereof. As of the Closing Date, the Collection Account and the Interest
Reserve Account shall be located at the Trustee's offices in Minneapolis,
Minnesota. The Trustee shall give notice to the Master Servicer, the Special
Servicer and the Rating Agencies of any change in the location of each of the
Collection Account and the Interest Reserve Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Custodial Account, the
Collection Account and the Interest Reserve Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Collection Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b) and any
<PAGE>
amounts that may be applied to make P&I Advances pursuant to Section
4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
unreimbursed P&I Advances, the Trustee's and Master Servicer's, as the
case may be, respective rights to reimbursement pursuant to this clause
(ii) with respect to any P&I Advance (other than Nonrecoverable Advances,
which are reimbursable pursuant to clause (vii) below) being limited to
amounts that represent Late Collections of interest and principal (net of
the related Master Servicing Fees and any related Workout Fees or
Liquidation Fees) received in respect of the particular Mortgage Loan or
REO Loan as to which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Loan, the Master Servicer's right to
payment pursuant to this clause (iii) with respect to any Mortgage Loan or
REO Loan being limited to amounts received on or in respect of such
Mortgage Loan (whether in the form of payments, Liquidation Proceeds or
Insurance Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay (A) to the Special Servicer, out of general collections
on the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Loan and (B) to itself, out of general collections on the Mortgage Loans
and REO Properties, any Master Servicing Fee earned in respect of any
Mortgage Loan or REO Loan that remains unpaid in accordance with clause
(iii) above following a Final Recovery Determination made with respect to
such Mortgage Loan or the related REO Property and the deposit into the
Custodial Account of all amounts received in connection therewith;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of each Specially Serviced Mortgage Loan, Corrected Mortgage Loan
and/or REO Loan, as applicable, in the amounts and from the sources
specified in Section 3.11(c);
(vi) to reimburse the Trustee, itself or the Special Servicer, in
that order, for any unreimbursed Servicing Advances made thereby, the
Trustee's, the Master Servicer's and the Special Servicer's respective
rights to reimbursement pursuant to this clause (vi) with respect to any
Servicing Advance being limited to payments made by the related Mortgagor
that are allocable to such Servicing Advance, or to Liquidation Proceeds
(net of Liquidation Fees payable therefrom), Insurance Proceeds and, if
applicable, REO Revenues received in respect of the particular Mortgage
Loan or REO Property as to which such Servicing Advance was made;
(vii) to reimburse the Trustee, itself or the Special Servicer, in
that order, out
<PAGE>
of general collections on the Mortgage Loans and any REO Properties, for
any unreimbursed Advances that have been or are determined to be
Nonrecoverable Advances;
(viii) to pay the Trustee, itself or the Special Servicer, as the
case may be, in that order, any interest accrued and payable in accordance
with Section 3.03(d) or 4.03(d), as applicable, on any Advance made
thereby, the Trustee's, the Master Servicer's and the Special Servicer's
respective rights to payment pursuant to this clause (viii) with respect
to interest on any Advance being permitted to be satisfied (A) out of late
payment charges and Default Interest collected (1) on or in respect of the
related Mortgage Loan or REO Loan, as the case may be, and (2) during the
same Collection Period in which such Advance is reimbursed, and (B) to the
extent that the late payment charges and Default Interest described in the
immediately preceding clause (A) are insufficient, but only after such
Advance has been reimbursed, out of general collections on the Mortgage
Loans and any REO Properties if such Advance has been reimbursed on a
prior date;
(ix) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) (other than the costs of environmental
testing, which are to be covered by, and reimbursable as, a Servicing
Advance);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the Custodial Account as provided in Section
3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Custodial Account for any Collection Period, (B) Prepayment
Interest Excesses and (C) Default Interest and late payment charges
actually collected that accrued in respect of non-Specially Serviced
Mortgage Loans (to the extent such Default Interest and/or late payment
charges were not applied to offset interest on Advances pursuant to clause
(viii)(A) above), and to pay the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), Default
Interest and late payment charges actually collected that accrued in
respect of Specially Serviced Mortgage Loans and REO Loans (to the extent
such Default Interest and/or late payment charges were not applied to
offset interest on Advances pursuant to clause (viii)(A) above;
(xi) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a) or 4.03(c);
(xii) to pay itself, the Special Servicer, the Depositor, or any of
their respective directors, officers, employees and agents, as the case
may be, out of general collections on the Mortgage Loans and any REO
Properties, any amounts payable to any such Person pursuant to Section
6.03;
<PAGE>
(xiii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for (A) the cost of the Opinion of Counsel
contemplated by Section 11.02(a), (B) the cost of an Opinion of Counsel
contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the
Special Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, (C) the cost of recording this Agreement
in accordance with Section 11.02(a) and (D) the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without
cause;
(xiv) to pay itself, the Special Servicer, the Depositor, any
Controlling Class Certificateholder or any other Person, as the case may
be, with respect to each Mortgage Loan, if any, previously purchased by
such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase;
(xv) to pay, in accordance with Section 3.03(e), out of general
collections on the Mortgage Loans and any REO Properties, any servicing
expenses, that would, if advanced, constitute Nonrecoverable Servicing
Advances; and
(xvi) to clear and terminate the Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Custodial Account pursuant to clauses
(ii) - (xv) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) or the Trustee from
the Custodial Account amounts permitted to be paid to the Special Servicer (or
to any such third party contractor) or the Trustee therefrom promptly upon
receipt of a written statement of a Servicing Officer of the Special Servicer or
of a Responsible Officer of the Trustee describing the item and amount to which
the Special Servicer (or such third party contractor) or the Trustee, as
applicable, is entitled (unless pursuant to this Agreement it is otherwise clear
that the Special Servicer or the Trustee, as the case may be, is entitled to
such amounts, in which case a written statement is not required). The Master
Servicer may rely conclusively on any such written statement and shall have no
duty to re-calculate the amounts stated therein. The Special Servicer shall keep
and maintain separate accounting for each Specially Serviced Mortgage Loan and
REO Property, on a loan-by-loan and property-by-property basis, for the purpose
of justifying any request for withdrawal from the Custodial Account. With
respect to each Mortgage Loan for which it makes an Advance, the Trustee shall
keep and maintain separate accounting for each Mortgage Loan and REO Property,
on a loan-by-loan and property-by-property basis, for the purpose of justifying
any request for withdrawal from the Custodial Account for
<PAGE>
reimbursements of Advances or interest thereon.
(b) The Trustee may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (in no particular order of
priority):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay the Trustee or any of its directors, officers, employees
and agents, as the case may be, out of general collections on the Mortgage
Loans and any REO Properties, any amounts payable or reimbursable to any
such Person pursuant to Section 7.01(b) and/or Section 8.05, as
applicable;
(iii) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), interest and investment
income earned in respect of amounts held in the Collection Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Collection Account for any Collection
Period);
(iv) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for the cost of the Opinions of Counsel sought by the
Trustee or the REMIC Administrator (A) as provided in clause (v) of the
definition of "Disqualified Organization", (B) as contemplated by Sections
9.02(a)(i), 10.01(i) and 10.02(e), or (C) as contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the rights
and interests of Certificateholders;
(v) to pay, out of general collections on the Mortgage Loans and any
REO Properties, any and all federal, state and local taxes imposed on any
of the REMICs created hereunder or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, to the extent
none of the Depositor, the Trustee, the REMIC Administrator, the Master
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(j) or Section 10.02(f);
(vi) to pay the REMIC Administrator, out of general collections on
the Mortgage Loans and any REO Properties, any amounts reimbursable to it
pursuant to Section 10.01(f) or Section 10.02(b);
(vii) to pay the Master Servicer any amounts deposited by the Master
Servicer in the Collection Account in error;
(viii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans to the Interest Reserve Account as and when
required by Section 3.04(c); and
<PAGE>
(ix) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On each P&I Advance Date in March, the Trustee shall withdraw
from the Interest Reserve Account and deposit in the Collection Account all
Interest Reserve Amounts that have been deposited in the Interest Reserve
Account in respect of the Interest Reserve Loans during January and/or February
of the same year in accordance with Section 3.04(c). In addition, the Trustee
may from time to time make withdrawals from the Interest Reserve Account to pay
the Master Servicer, as additional servicing compensation in accordance with
Section 3.11(b), interest and investment income earned in respect of amounts
held in the Interest Reserve Account as provided in Section 3.06(b) (but only to
the extent of the Net Investment Earnings with respect to the Interest Reserve
Account for any Collection Period).
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the
Custodial Account, the Collection Account, the Interest
Reserve Account and the REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or the Custodial Account and may direct in writing the Trustee
with respect to the Collection Account and the Interest Reserve Account (each,
for purposes of this Section 3.06, an "Investment Account"), and the Special
Servicer may direct in writing any depository institution maintaining the REO
Account (also, for purposes of this Section 3.06, an "Investment Account"), to
invest, or if it is such depository institution, may itself invest, the funds
held therein (other than Additional Interest received in respect of the ARD
Loans after their respective Anticipated Repayment Dates) in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement; provided that, in the case of any
Servicing Account, Reserve Account or the Defeasance Deposit Account, such
investment direction shall be subject to the related Mortgage Loan documents. In
the event the Master Servicer shall have failed to give investment directions
for the Collection Account or Interest Reserve Account by 11:00 a.m. New York
City time on any Business Day on which there may be uninvested cash, such funds
shall be invested in securities described in clause (v) of the definition of
"Permitted Investments". The Trustee agrees that funds in the Collection Account
and the Interest Reserve Account will be invested in accordance herewith on the
day of receipt if received by 4:00 p.m. New York City time. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Servicing Accounts, the
<PAGE>
Reserve Accounts, the Defeasance Deposit Account and the Custodial Account) and
the Special Servicer (with respect to Permitted Investments of amounts in the
REO Account), on behalf of the Trustee, shall (and the Trustee hereby designates
the Master Servicer and the Special Servicer, as applicable, as the person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.06(a), the terms "entitlement holder," "security
entitlement," "control," "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision) of
the UCC, and "control" of any Permitted Investment by the Master Servicer or the
Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee for purposes of Revised Article 8 (1994
Revision) of the UCC . If amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Master Servicer
(in the case of the Custodial Account, Servicing Accounts, Reserve Accounts and
the Defeasance Deposit Account), the Trustee (in the case of the Collection
Account and the Interest Reserve Account) or the Special Servicer (in the case
of the REO Account) shall:
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to at
least the lesser of (1) all amounts then payable thereunder and (2)
the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account, the Custodial Account, the Collection Account or the Interest
Reserve Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each such
Investment Account for each Collection Period (and, in the case of Servicing
Accounts, Reserve Accounts and the Defeasance Deposit Account, to the extent not
otherwise payable to Mortgagors under applicable law or the related Mortgage
Loan documents), shall be for the sole and exclusive benefit of the Master
Servicer and shall be subject to its withdrawal in accordance with Section
3.03(a), 3.04(a), 3.03(f) or 3.05(a) or withdrawal by the Trustee at its
direction in accordance with Section 3.05(b), as applicable. Whether or not the
Special Servicer directs the investment of funds in the REO Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of the Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16(b). If any
loss shall be incurred in respect of any Permitted Investment on deposit in any
Investment Account, the Master Servicer (in the case of the
<PAGE>
Servicing Accounts, the Reserve Accounts and the Defeasance Deposit Account
(except to the extent that any investment of funds with respect thereto is at
the direction of a Mortgagor in accordance with the related Mortgage Loan
documents or applicable law), the Custodial Account, the Collection Account and
the Interest Reserve Account) and the Special Servicer (in the case of the REO
Account) shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, for such
Investment Account for such Collection Period.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
Certificateholders entitled to a majority of the Voting Rights allocated to a
Class, shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property all insurance
coverage as is required under the related Mortgage; provided that if and to the
extent that any such Mortgage permits the holder thereof any discretion (by way
of consent, approval or otherwise) as to the insurance coverage that the related
Mortgagor is required to maintain, the Master Servicer or Special Servicer, as
the case may be, shall exercise such discretion in a manner consistent with the
Servicing Standard; and provided further that, if and to the extent that a
Mortgage so permits, the Master Servicer or Special Servicer, as the case may
be, shall use reasonable best efforts to require the related Mortgagor to obtain
the required insurance coverage from Qualified Insurers that have a "claims
paying ability" or "financial strength" rating, as applicable, of at least "A2"
from Moody's and "A" from DCR (if then rated by DCR) (or, in the case of either
Rating Agency, such lower rating as will not result in qualification (in the
case of ratings assigned by Moody's), downgrade or withdrawal of any of the
ratings then assigned to the Certificates by such Rating Agency, as evidenced in
writing by such Rating Agency). Any Controlling Class Certificateholder may
request that earthquake insurance, to the extent such insurance may reasonably
be obtained, be secured for one or more Mortgaged Properties at the expense of
<PAGE>
such Controlling Class Certificateholder. Subject to Section 3.17(a), the
Special Servicer, in accordance with the Servicing Standard, shall also cause to
be maintained for each REO Property no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage; provided that
all such insurance shall be obtained from Qualified Insurers that, if they are
providing casualty insurance, shall have (or any entities that guarantee or
back, in writing, such Qualified Insurers' obligations shall have) a "claims
paying ability" or "financial strength" rating, as applicable, of at least "A2"
from Moody's and "A" from DCR (if then rated by DCR) (or, in the case of either
Rating Agency, such lower rating as will not result in qualification (in the
case of ratings assigned by Moody's), downgrade or withdrawal of any of the
ratings then assigned to the Certificates by such Rating Agency, as evidenced in
writing by such Rating Agency). All such insurance policies shall contain (if
they insure against loss to property and do not relate to an REO Property) a
"standard" mortgagee clause, with loss payable to the Master Servicer (in the
case of insurance maintained in respect of Mortgage Loans, including, without
limitation, Specially Serviced Mortgage Loans), and shall be in the name of the
Special Servicer (in the case of insurance maintained in respect of REO
Properties), on behalf of the Trustee; and, in each case, such insurance shall
be issued by a Qualified Insurer. Any amounts collected by the Master Servicer
or the Special Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Mortgagor, in each case
subject to the rights of any tenants and ground lessors, as the case may be, and
in each case in accordance with the terms of the related Mortgage and the
Servicing Standard) shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.05(a), in the case of amounts received in
respect of a Mortgage Loan, or in the REO Account, subject to withdrawal
pursuant to Section 3.16(c), in the case of amounts received in respect of an
REO Property. Any cost incurred by the Master Servicer or the Special Servicer
in maintaining any such insurance (including any earthquake insurance maintained
at the request of a Controlling Class Certificateholder) shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan or REO Loan, notwithstanding that the terms
of such Mortgage Loan so permit, but shall be recoverable by the Master Servicer
and the Special Servicer as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy
insuring against hazard losses on all of the Mortgage Loans and/or REO
Properties that it is required to service and administer, then, to the extent
such policy (i) is obtained from a Qualified Insurer having (or whose
obligations are guaranteed or backed, in writing, by an entity having) a "claims
paying ability" or "financial strength" rating, as applicable, of at least "A2"
from Moody's and "A" from DCR (if then rated by DCR, and if not rated by DCR,
then an equivalent rating by at least one additional nationally recognized
statistical rating agency, or otherwise approved by DCR) (or, in the case of
either Rating Agency, such lower rating as will not result in qualification (in
the case of ratings assigned by Moody's), downgrade or withdrawal of any of the
ratings then assigned to the Certificates by such Rating Agency, as evidenced in
writing by
<PAGE>
such Rating Agency), and (ii) provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special Servicer, as the
case may be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the related Mortgaged Properties
and/or REO Properties. Such blanket policy may contain a deductible clause (not
in excess of a customary amount), in which case the Master Servicer or the
Special Servicer, as appropriate, shall, if there shall not have been maintained
on the related Mortgaged Property or REO Property an individual hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses that would have been covered by such individual policy,
promptly deposit into the Custodial Account from its own funds the amount not
otherwise payable under the blanket policy because of such deductible clause.
The Master Servicer or the Special Servicer, as appropriate, shall prepare and
present, on behalf of itself, the Trustee and Certificateholders, claims under
any such blanket policy in a timely fashion in accordance with the terms of such
policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force with Qualified Insurers having (or whose obligations are guaranteed or
backed, in writing, by entities having) a "claims paying ability" or "financial
strength" rating, as applicable, of at least "Baa3" from Moody's and "A" from
DCR (if then rated by DCR) (or, in the case of either Rating Agency, such lower
rating as will not result in qualification (in the case of ratings assigned by
Moody's), downgrade or withdrawal of any of the ratings then assigned to the
Certificates by such Rating Agency, as evidenced in writing by such Rating
Agency), a fidelity bond, which fidelity bond shall be in such form and amount
as would permit it to be a qualified FNMA seller-servicer of multifamily
mortgage loans, or in such other form and amount as would not cause the
qualification (in the case of ratings assigned by Moody's), downgrade or
withdrawal of any rating assigned by either Rating Agency to the Certificates
(as evidenced in writing from each Rating Agency). Each of the Master Servicer
and the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties are part of the Trust Fund) also
keep in force with Qualified Insurers having a "claims paying ability" or
"financial strength" rating, as applicable, of at least "Baa3" from Moody's and
"A" from DCR (if then rated by DCR) (or, in the case of either Rating Agency,
such lower rating as will not result in qualification (in the case of ratings
assigned by Moody's), downgrade or withdrawal of any of the ratings then
assigned to the Certificates by such Rating Agency, as evidenced in writing by
such Rating Agency), a policy or policies of insurance covering loss
<PAGE>
occasioned by the errors and omissions of its officers, employees and agents in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified FNMA
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not cause the qualification (in the case of ratings assigned by
Moody's), downgrade or withdrawal of any rating assigned by either Rating Agency
to the Certificates (as evidenced in writing from each Rating Agency). Each of
the Master Servicer and the Special Servicer shall be deemed to have complied
with the foregoing provisions if an Affiliate thereof has such insurance and, by
the terms of such policy or policies, the coverage afforded thereunder extends
to the Master Servicer or the Special Servicer, as the case may be.
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or, in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent), are
rated at least "A2" from Moody's and "A" from DCR (if then rated by DCR) (or, in
the case of either Rating Agency, such lower rating as will not result in
qualification (in the case of ratings assigned by Moody's), downgrade or
withdrawal of any of the ratings then assigned to the Certificates by such
Rating Agency, as evidenced in writing by such Rating Agency), such Person may
self-insure with respect to the risks described in this Section 3.07(c).
SECTION 3.08. Enforcement of Alienation Clauses.
(a) In the event that the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that permits, with the lender's consent, the
transfer of the related Mortgaged Property to, and assumption of such Mortgage
Loan by, another Person or transfers of certain interests in such Mortgagor, the
Master Servicer shall promptly obtain relevant information for purposes of
evaluating such request. If the Master Servicer recommends to approve such
transfer and/or assumption, the Master Servicer shall promptly provide to the
Special Servicer a copy of such recommendation (which shall include the reason
therefor) and the materials upon which such recommendation is based, and the
Special Servicer shall have the right hereunder to reasonably withhold or,
subject to Section 3.08(d) and Section 6.11, grant consent to any such request
for such transfer and/or assumption in accordance with the terms of the Mortgage
Loan and this Agreement, including, without limitation, the Servicing Standard.
Upon consent by the Special Servicer to such proposed transfer and/or
assumption, the Special Servicer shall process such request of the related
Mortgagor; and, in the case of a transfer of the related Mortgaged Property to,
and assumption of such Mortgage Loan by, another Person, the Special Servicer
shall be authorized to enter into an assumption or substitution agreement with
the Person, which shall be a Single Purpose Entity, to whom the related
Mortgaged Property has been or is proposed to be conveyed and/or release the
original Mortgagor from liability under the related Mortgage Loan and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed;
<PAGE>
provided, however, that the Special Servicer shall not enter into any such
agreement to the extent that any terms thereof would result in an Adverse REMIC
Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property
that is senior to, or on parity with, the lien of the related Mortgage. The
Special Servicer shall notify the Trustee, the Master Servicer and each Rating
Agency of any assumption or substitution agreement executed pursuant to this
Section 3.08(a) and shall forward thereto a copy of such agreement together with
a Review Package. The Master Servicer shall be entitled (as additional servicing
compensation) to 50% of each assumption fee, each assumption application fee and
each other fee for approving a transfer of a Mortgaged Property or an interest
in a Mortgagor collected from a Mortgagor in connection with an assumption or
substitution agreement executed pursuant to this Section 3.08(a) or a transfer
of interest in a Mortgagor approved pursuant to this Section 3.08(a), and the
Special Servicer shall be entitled (as additional special servicing
compensation) to the other 50% of such fee(s); provided that if any such
transfer and/or assumption does not occur, the Master Servicer shall be entitled
to 100% of any related assumption application fee. Subject to the terms of the
related Mortgage Loan documents, no assumption of a Cross-Collateralized
Mortgage Loan shall be made without the assumption of all other Mortgage Loans
making up the related Cross-Collateralized Group. Further, subject to the terms
of the related Mortgage Loan documents and applicable law, no assumption of a
Mortgage Loan shall be made or transfer of interest in a Mortgagor approved if
all costs in connection therewith, including, but not limited to, any arising
from seeking Rating Agency confirmation, will not be paid by the Mortgagor.
(b) Other than with respect to a transfer and assumption referred to
in subsection (a) above, if any Mortgage contains restrictions on transfers of
the related Mortgaged Property and/or transfers of interests in the related
Mortgagor, then the Special Servicer, on behalf of the Trust, and not the Master
Servicer, shall, to the extent permitted by applicable law, enforce such
restrictions, unless the Special Servicer has determined, in its reasonable,
good faith judgment, that waiver of such restrictions would be in accordance
with the Servicing Standard (as evidenced by an Officer's Certificate setting
forth the basis for such determination delivered, together with a Review Package
in respect thereof, to the Trustee, the Master Servicer and each Rating Agency);
provided that, any such waiver of such restrictions shall be subject to Section
3.08(d) and Section 6.11. If the Master Servicer receives a request for a
transfer and assumption of a Specially Serviced Mortgage Loan from a Mortgagor
whose Mortgage contains restrictions on transfers of the related Mortgaged
Property, the Master Servicer shall immediately notify the Special Servicer of
such request and deliver to the Special Servicer the Mortgage File (or a copy
thereof) and such other documents that the Master Servicer shall have received
regarding the proposed transfer and assumption. Upon consent by the Special
Servicer to any proposed transfer of a Mortgaged Property and assumption by the
proposed transferee of the related Mortgage Loan pursuant to this Section
3.08(b), the Special Servicer shall process the request of the related Mortgagor
for such transfer and assumption and shall be authorized to enter into an
assumption or substitution agreement with the Person, which shall be a Single
Purpose Entity, to whom the related Mortgaged Property has been or is proposed
to be conveyed and/or release the original
<PAGE>
Mortgagor from liability under the related Mortgage Loan and substitute as
obligor thereunder the Person to whom the related Mortgaged Property has been or
is proposed to be conveyed; provided, however, that the Special Servicer shall
not enter into any such agreement to the extent that any terms thereof would
result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any
lien on a Mortgaged Property that is senior to, or on parity with, the lien of
the related Mortgage. The Special Servicer shall notify the Trustee, the Master
Servicer and each Rating Agency of any assumption or substitution agreement
executed pursuant to this Section 3.08(b) and shall forward thereto a copy of
such agreement. The Special Servicer shall be entitled (as additional special
servicing compensation) to 100% of any assumption fee and/or assumption
application fee collected from a Mortgagor in connection with an assumption or
substitution agreement executed pursuant to this Section 3.08(b). Subject to the
terms of the related Mortgage Loan documents, no assumption of a
Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Mortgage Loans making up the related Cross-Collateralized Group. Further,
subject to the terms of the related Mortgage Loan documents and applicable law,
no assumption of a Mortgage Loan shall be made if all costs in connection
therewith, including, but not limited to, any arising from seeking Rating Agency
confirmation, will not be paid by the Mortgagor.
(c) With respect to all Mortgage Loans, the Special Servicer on
behalf of the Trustee as the mortgagee of record, shall, to the extent permitted
by applicable law, enforce the restrictions contained in the related Mortgage on
further encumbrances of the related Mortgaged Property, unless the Special
Servicer has determined, in its reasonable, good faith judgment, that waiver of
such restrictions would be in accordance with the Servicing Standard (as
evidenced by an Officer's Certificate setting forth the basis for such
determination delivered to the Trustee, the Master Servicer and each Rating
Agency); provided that any such waiver of such restrictions shall be subject to
Section 3.08(d) and Section 6.11. Whenever the Master Servicer becomes aware of
a further encumbrance on a Mortgaged Property, or becomes aware that there is
going to be a further encumbrance on a Mortgaged Property, the Master Servicer
shall immediately notify the Special Servicer of such further encumbrance and
deliver to the Special Servicer all documents and records (or copies thereof) in
the Master Servicer's possession regarding the further encumbrance and such
other documents (or copies thereof) regarding the Mortgage Loan as the Special
Servicer shall reasonably require in order to consider the request. To the
extent permitted by the applicable Mortgage Loan documents and applicable law,
the Special Servicer may charge the related Mortgagor a fee in connection with
any enforcement or waiver contemplated in the second preceding sentence.
(d) Notwithstanding anything to the contrary contained in this
Section 3.08, if the then unpaid principal balance of the subject Mortgage Loan
is at least equal to $20,000,000, neither the Master Servicer nor the Special
Servicer shall waive any restrictions contained in the related Mortgage on
transfers of the related Mortgaged Property or on transfers of interests in the
related Mortgagor, unless the Master Servicer or the Special Servicer, as the
case may be, shall have received prior written confirmation from Moody's and, if
the principal balance of the subject Mortgage Loan is also at least equal to 2%
of the
<PAGE>
then aggregate principal balance of the Mortgage Pool, from DCR, that such
action would not result in a qualification (in the case of ratings assigned by
Moody's), downgrade or withdrawal of any of the ratings then assigned to the
Certificates. In addition, notwithstanding anything to the contrary contained in
this Section 3.08, neither the Master Servicer nor the Special Servicer shall in
any event waive any restrictions contained in any Mortgage on further
encumbrances of the related Mortgaged Property, unless the Master Servicer or
the Special Servicer, as the case may be, shall have received prior written
confirmation from each Rating Agency that such action would not result in a
qualification (in the case of ratings assigned by Moody's), downgrade or
withdrawal of any of the ratings then assigned to the Certificates. In
connection with any request for rating confirmation from a Rating Agency
pursuant to this Section 3.08(d), the Master Servicer or the Special Servicer,
as the case may be, shall deliver a Review Package to such Rating Agency.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. The Special Servicer shall advance all costs and expenses (other
than costs or expenses that would, if incurred, constitute a Nonrecoverable
Servicing Advance) incurred by it in any such proceedings, and shall be entitled
to reimbursement therefor as provided in Section 3.05(a). The Special Servicer
shall be responsible, consistent with the Servicing Standard, for determining
whether to exercise any rights it may have under the cross-collateralization
and/or cross-default provisions of a Cross-Collateralized Mortgage Loan. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Trust Fund, to make a bid on any Mortgaged Property
at a foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer in its reasonable
and good faith judgment taking into account the factors described in Section
3.18(e) and the results of any appraisal obtained as provided below in this
Section 3.09, all such bids to be made in a manner consistent with the Servicing
Standard; provided that any such bid of the Special Servicer, on behalf of the
Trust, with respect to a Mortgaged Property located in Puerto Rico shall be
equal to the aggregate of all amounts then due and owing under the related
Mortgage Loan. If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a defaulted Mortgage Loan, whether for purposes of
bidding at foreclosure or otherwise, it may have an appraisal performed with
respect to such property by an Independent Appraiser or other expert in real
estate matters, which appraisal shall take into account the factors specified in
Section 3.18(e), and the cost of which appraisal shall be covered by, and be
reimbursable as, a Servicing Advance. If the Master Servicer intends to obtain
an appraisal in connection with the
<PAGE>
foregoing, the Master Servicer shall so notify the Special Servicer and consult
with the Special Servicer regarding such appraisal. With respect to each
Required Appraisal Loan, the Special Servicer will be required to obtain a
Required Appraisal within 60 days of a Mortgage Loan becoming a Required
Appraisal Loan (unless an appraisal meeting the requirements of a Required
Appraisal was obtained for such Required Appraisal Loan within the prior 12
months and the Special Servicer reasonably believes (in accordance with the
Servicing Standard) no material change has occurred with respect to the related
Mortgaged Property that would draw into question the applicability of such
appraisal, in which case such appraisal shall be the Required Appraisal) and
thereafter shall obtain an updated Required Appraisal once every 12 months for
so long as such Mortgage Loan remains a Required Appraisal Loan. The Special
Servicer shall deliver copies of all such Required Appraisals and updated
Required Appraisals to the Trustee and Master Servicer, in each such case,
promptly following the Special Servicer's receipt of the subject item, and to
the Controlling Class Representative upon request, and based thereon, the
Special Servicer shall calculate and notify the Trustee, the Master Servicer and
the Controlling Class Representative of any resulting Appraisal Reduction
Amount. Such calculations by the Special Servicer shall be subject to review and
confirmation by the Master Servicer, provided that the Master Servicer may rely
on any information provided by the Special Servicer. The Special Servicer shall
advance the cost of each such Required Appraisal and updated Required Appraisal;
provided, however, that such expense will be subject to reimbursement to the
Special Servicer as a Servicing Advance out of the Custodial Account pursuant to
Section 3.05(a). At any time that any Appraisal Reduction Amount exists with
respect to any Required Appraisal Loan, the Controlling Class Representative
may, at its own expense, obtain and deliver to the Master Servicer, the Special
Servicer and the Trustee an appraisal that satisfies the requirements of a
"Required Appraisal", and upon the written request of the Controlling Class
Representative, the Special Servicer shall recalculate the Appraisal Reduction
Amount in respect of such Required Appraisal Loan based on such appraisal and
notify the Trustee, the Master Servicer and the Controlling Class Representative
of such recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer as part of the
Trust Fund under such circumstances, in such manner or pursuant to such terms as
would, in the reasonable, good faith judgment of the Special Servicer (exercised
in accordance with the Servicing Standard), (i) cause such Mortgaged Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (unless the portion of such REO Property that is not
treated as "foreclosure property" and that is held by REMIC I at any given time
constitutes not more than a de minimis amount of the assets of REMIC I within
the meaning of Treasury regulation Section 1.860D-1(b)(3)(i) and (ii)), or (ii)
except as permitted by Section 3.17(a), subject the Trust Fund to the imposition
of any federal income taxes under the Code. In addition, the Special Servicer
shall not acquire any personal property pursuant to this Section 3.09 unless
either:
(i) such personal property is, in the reasonable, good faith
judgment of the
<PAGE>
Special Servicer (exercised in accordance with the Servicing Standard),
incident to real property (within the meaning of Section 856(e)(1) of the
Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on any of REMIC I, REMIC II or REMIC III under the REMIC Provisions or
cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC
at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property by foreclosure, deed in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable, good faith judgment of the Master
Servicer or the Special Servicer, as the case may be, made in accordance with
the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law (a
"potentially responsible party"), unless such action is consistent with Section
6.11 and the Special Servicer has previously determined (as evidenced by an
Officers' Certificate to such effect delivered to the Trustee that shall specify
all of the bases for such determination) in accordance with the Servicing
Standard, and based on a Environmental Assessment of such Mortgaged Property
performed by an Independent Person, who regularly conducts Environmental
Assessments, within six months prior to any such acquisition of title or other
action (a copy of which Environmental Assessment shall be delivered to the
Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Mortgaged Property into compliance
therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would maximize the recovery to the
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be
<PAGE>
distributable to Certificateholders to be performed at the related
Mortgage Rate) to acquire title to or possession of the Mortgaged Property
and to take such actions with respect to the affected Mortgaged Property.
The Special Servicer shall undertake, in good faith, reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the Custodial Account pursuant to Section 3.05.
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust, subject to
Section 6.11, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage; provided that, if such Mortgage Loan has a then
outstanding principal balance greater than $1 million, then prior to the release
of all or a portion of the related Mortgaged Property from the lien of the
related Mortgage, (i) the Special Servicer shall have notified the Rating
Agencies, the Trustee and the Master Servicer in writing of its intention to so
release all or a portion of such Mortgaged Property and the bases for such
intention, (ii) the Trustee shall have notified the Certificateholders in
writing of the Special Servicer's intention to so release all or a portion of
such Mortgaged Property, and (iii) the Holders of Certificates entitled to a
majority of the Voting Rights shall not have objected to such release within 30
days of the Trustee's distributing such notice.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriters and the Trustee monthly in writing as to any actions taken by the
Special Servicer with respect to any Mortgaged Property that represents security
for a defaulted Mortgage Loan as to which the environmental testing contemplated
in Section 3.09(c) above has revealed that any of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earlier to occur of satisfaction of all such conditions and
release of the lien of the related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the
<PAGE>
state in which the Mortgaged Property is located and the terms of the Mortgage
Loan permit such an action and shall, in accordance with the Servicing Standard,
seek such deficiency judgment if it deems advisable (the cost of which
undertaking shall be covered by, and be reimbursable as, a Servicing Advance).
(g) The Special Servicer shall, with the reasonable cooperation of
the Master Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received in a trade or business, the reports of
foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050H, 6050J and 6050P of the Code and
each year deliver to the Trustee and the REMIC Administrator an Officers'
Certificate stating that such reports have been filed. Such reports shall be in
form and substance sufficient to meet the reporting requirements imposed by
Sections 6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee and the Master Servicer. The Special Servicer shall
maintain accurate records, prepared by a Servicing Officer, of each such Final
Recovery Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the seventh Business Day
following such Final Recovery Determination.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer or the Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or the Special Servicer shall promptly notify the Trustee by a
certification (which certification shall be in the form of a Request for Release
in the form of Exhibit D-1 attached hereto and shall be accompanied by the form
of a release or discharge and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Custodial Account pursuant to Section 3.04(a)
have been or will be so deposited) of a Servicing Officer (a copy of which
certification shall be delivered to the Special Servicer) and shall request
delivery to it of the related Mortgage File. Upon receipt of such certification
and request, the Trustee shall release, or cause any related Custodian to
release, the related Mortgage File to the Master Servicer or Special Servicer
and shall deliver to the Master Servicer or Special Servicer, as applicable,
such release or discharge, duly executed. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Custodial Account or the Collection Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of
<PAGE>
any Mortgage Loan, the Master Servicer or the Special Servicer shall otherwise
require any Mortgage File (or any portion thereof), the Trustee, upon request of
the Master Servicer and receipt from the Master Servicer of a Request for
Release in the form of Exhibit D-1 attached hereto signed by a Servicing Officer
thereof, or upon request of the Special Servicer and receipt from the Special
Servicer of a Request for Release in the form of Exhibit D-2 attached hereto,
shall release, or cause any related Custodian to release, such Mortgage File (or
portion thereof) to the Master Servicer or the Special Servicer, as the case may
be. Upon return of such Mortgage File (or portion thereof) to the Trustee or
related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the Special Servicer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation that are required to be deposited into the Custodial Account
pursuant to Section 3.04(a) have been or will be so deposited, or that such
Mortgage Loan has become an REO Property, the Request for Release shall be
released by the Trustee or related Custodian to the Master Servicer or the
Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO Property or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee a certificate of a Servicing Officer requesting that such pleadings
or documents be executed by the Trustee and certifying as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Trustee will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including, without limitation, each Specially Serviced
Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the
Master Servicing Fee shall: (i) accrue from time to time at the related Master
Servicing Fee Rate on the same principal amount as interest accrues from time to
time on such Mortgage Loan or is deemed to accrue from time to time on such REO
Loan; and (ii) be calculated on a 30/360 Basis (or, in the event that a
Principal Prepayment in
<PAGE>
full or other Liquidation Event shall occur with respect to a Mortgage Loan or
REO Loan on a date that is not a Due Date, on the basis of the actual number of
days to elapse from and including the most recently preceding related Due Date
to but excluding the date of such Principal Prepayment or Liquidation Event in a
month consisting of 30 days). The Master Servicing Fee with respect to any
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. Earned but unpaid Master Servicing Fees shall be payable
monthly, on a loan-by-loan basis, from payments of interest on each Mortgage
Loan and REO Revenues allocable as interest on each REO Loan. The Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any Mortgage Loan or REO Loan out of that portion of related Insurance Proceeds
or Liquidation Proceeds allocable as recoveries of interest, to the extent
permitted by Section 3.05(a)(iii). The right to receive the Master Servicing Fee
may not be transferred in whole or in part except in connection with the
transfer of all of the Master Servicer's responsibilities and obligations under
this Agreement.
(b) Additional servicing compensation in the form of (i) late
payment charges, Default Interest, charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and any
similar fees (excluding Prepayment Premiums or Yield Maintenance Charges), in
each case to the extent actually paid by a Mortgagor with respect to any
Mortgage Loan and accrued during the time that such Mortgage Loan was not a
Specially Serviced Mortgage Loan, (ii) modification fees actually paid by a
Mortgagor with respect to a modification, waiver or amendment agreed to by the
Master Servicer pursuant to Section 3.20(c), and (iii) fifty percent (50%) of
each assumption fee, each assumption application fee and each other fee for
approving a transfer of a Mortgaged Property or an interest in a Mortgagor, in
each case actually paid by a Mortgagor with respect to any assumption or
substitution agreement entered into by the Special Servicer on behalf of the
Trust pursuant to Section 3.08(a) or paid by a Mortgagor with respect to any
transfer of an interest in a Mortgagor pursuant to Section 3.08(a) (or, if no
assumption occurs, 100% of the related assumption application fee), shall be
retained by the Master Servicer or promptly paid to the Master Servicer by the
Special Servicer and are not required to be deposited in the Custodial Account;
provided that the Master Servicer's right to receive (pursuant to clause (i) of
this sentence) late payment charges and Default Interest shall be limited to the
portion of such items that have not been applied to pay interest on Advances in
respect of the related Mortgage Loan. The Master Servicer shall also be entitled
to additional servicing compensation in the form of (i) Prepayment Interest
Excesses; (ii) interest or other income earned on deposits in the Custodial
Account, the Collection Account and the Interest Reserve Account in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to each such account for each Collection Period), and (iii) to
the extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Servicing Accounts, the
Reserve Accounts and the Defeasance Deposit Account maintained thereby (but only
to the extent of the Net Investment Earnings, if any, with respect to each such
account for each Collection Period). The Master Servicer shall be required to
pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts
<PAGE>
due and owing to any of its Sub-Servicers and the premiums for any blanket
policy insuring against hazard losses pursuant to Section 3.07(b)), if and to
the extent such expenses are not payable directly out of the Custodial Account,
and the Master Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall: (i) accrue
from time to time at the Special Servicing Fee Rate on the same principal amount
as interest accrues from time to time on such Specially Serviced Mortgage Loan
or is deemed to accrue from time to time on such REO Loan; and (ii) be
calculated on a 30/360 Basis (or, in the event that a Principal Prepayment in
full or other Liquidation Event shall occur with respect to a Specially Serviced
Mortgage Loan or REO Loan on a date that is not a Due Date, on the basis of the
actual number of days to elapse from and including the most recently preceding
related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days and, in the case of any other
partial period of less than a full month, on the basis of the actual number of
days in such period in a month consisting of 30 days). The Special Servicing Fee
with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or it
becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees
shall be payable monthly out of general collections on the Mortgage Loans and
any REO Properties on deposit in the Custodial Account pursuant to Section
3.05(a).
In addition, with respect to each Corrected Mortgage Loan, the
Special Servicer shall be entitled to receive the Workout Fee, unless the basis
on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation
of a circumstance or condition relating to the Depositor's obligation to
repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such
Mortgage Loan is repurchased within the 180-day period described in Section
2.03(a), no Workout Fee will be payable from or based upon the receipt of, any
Purchase Price paid by the Depositor in satisfaction of such repurchase
obligation. Furthermore, no Workout Fees will be payable from or based upon the
receipt of any Liquidation Proceeds paid by the Depositor, the Master Servicer,
the Special Servicer, Lehman Brothers or any Controlling Class Certificateholder
in connection with the purchase of all the Mortgage Loans and any REO Properties
in the Trust Fund pursuant to Section 9.01 hereof. As to each Corrected Mortgage
Loan, subject to the exceptions provided for in the two preceding sentences, the
Workout Fee shall be payable from, and shall be calculated by application of the
Workout Fee Rate to, all collections of principal, interest (other than Default
Interest and Additional Interest), Prepayment Premiums and/or Yield Maintenance
Charges received on such Mortgage Loan for so long as it remains a Corrected
Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will
cease to be payable if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan or if the related Mortgaged Property becomes an REO Property; provided that
a new Workout Fee will become payable if
<PAGE>
and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the
Special Servicer is terminated other than for cause (and other than a
termination as a result of an Event of Default under Section 7.01(a)(x) or
7.01(a)(xi)) or resigns in accordance with the first sentence of the first
paragraph of Section 6.04, it shall retain the right to receive any and all
Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage
Loans during the period that it acted as Special Servicer and were still such at
the time of such termination or resignation (and the successor Special Servicer
shall not be entitled to any portion of such Workout Fees), in each case until
the Workout Fee for any such Mortgage Loan ceases to be payable in accordance
with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any full or discounted payoff from the related Mortgagor or any Liquidation
Proceeds (other than in connection with the purchase of any such Specially
Serviced Mortgage Loan or REO Property by a Controlling Class Certificateholder
pursuant to Section 3.18(b), by the Master Servicer or the Special Servicer
pursuant to Section 3.18(c), by the Depositor, the Master Servicer, the Special
Servicer, Lehman Brothers or a Controlling Class Certificateholder pursuant to
Section 9.01, or by the Depositor pursuant to Section 2.03 within 180 days of
its discovery or notice of the Breach or Document Defect that gave rise to the
repurchase obligation, and other than in connection with the condemnation or
other governmental taking of a Mortgaged Property or REO Property). As to each
such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall
be payable from, and shall be calculated by application of the Liquidation Fee
Rate to, such full or discounted payoff and/or Liquidation Proceeds; provided
that no Liquidation Fee shall be payable with respect to any such Specially
Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided,
further, that (without limiting the Special Servicer's right to any Workout Fee
that is properly payable therefrom), no Liquidation Fee shall be payable from,
or based upon the receipt of, Liquidation Proceeds collected as a result of any
purchase of a Specially Serviced Mortgage Loan or REO Property described in the
parenthetical to the first sentence of this paragraph or in connection with a
condemnation or other governmental taking of a Mortgaged Property or REO
Property.
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) Additional special servicing compensation in the form of (i)
late payment charges or Default Interest actually collected on the Mortgage
Loans that accrued with respect
<PAGE>
to a Specially Serviced Mortgage Loan or an REO Loan and (ii) all assumption
fees, assumption application fees, other fees payable for approving a transfer
of a Mortgaged Property or an interest in a Mortgagor and modification fees
actually collected on the Mortgage Loans that are not otherwise payable to the
Master Servicer as additional servicing compensation pursuant to Section
3.11(b), shall be retained by the Special Servicer or promptly paid to the
Special Servicer by the Master Servicer and shall not be required to be
deposited in the Custodial Account pursuant to Section 3.04(a); provided that
the Special Servicer's right to receive late payment charges and Default
Interest pursuant to clause (i) of this sentence shall be limited to the portion
of such items that have not been applied to pay interest on Advances in respect
of the related Specially Serviced Mortgage Loan or REO Property. The Special
Servicer shall also be entitled to additional special servicing compensation in
the form of interest or other income earned on deposits in the REO Account, if
established, in accordance with Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to the REO Account for each
Collection Period). The Special Servicer shall be required to pay out of its own
funds all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of its Sub-Servicers and the premiums for any blanket policy obtained by
it insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of the Custodial Account or
the REO Account, and the Special Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall at its expense perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
after the related Mortgage Loan becomes a Specially Serviced Mortgage Loan and
annually thereafter for so long as the related Mortgage Loan remains a Specially
Serviced Mortgage Loan. In addition, the Special Servicer shall at its expense
perform or cause to be performed a physical inspection of each of the REO
Properties at least once per calendar year. Beginning in 2000, the Master
Servicer shall at its expense perform or cause to be performed a physical
inspection of each Mortgaged Property securing a non-Specially Serviced Mortgage
Loan (i) at least once every three calendar years in the case of Mortgaged
Properties securing Credit Lease Loans, (ii) at least once every two calendar
years in the case of Mortgaged Properties securing Mortgage Loans (other than
Credit Lease Loans) that have outstanding principal balances of (or Mortgaged
Properties having allocated loan amounts of) $2,000,000 or less and (iii) at
least once every calendar year in the case of all other such Mortgaged
Properties; provided that if, with respect to any Credit Lease Loan, the Master
Servicer shall gain actual knowledge that Moody's or S&P has downgraded below
"BB+" (or the equivalent) or withdrawn its rating of the long-term senior
unsecured debt or similar obligations of the applicable Rated Party, the Master
Servicer shall promptly inspect the related Mortgaged Property and annually
thereafter until the above described ratings of the applicable Rated Party are
again at least
<PAGE>
"BB+" (or the equivalent) by Moody's or S&P, as the case may be. The Master
Servicer and the Special Servicer shall each promptly prepare or cause to be
prepared and deliver to the Trustee and to each other a written report of
each such inspection performed by it that sets forth in detail the condition
of the Mortgaged Property and that specifies the existence of: (i) any sale,
transfer or abandonment of the Mortgaged Property of which the Master
Servicer or the Special Servicer, as applicable, is aware, (ii) any change in
the condition or value of the Mortgaged Property that the Master Servicer or
the Special Servicer, as applicable, in its reasonable, good faith judgment,
considers material, or (iii) any waste committed on the Mortgaged Property.
The Master Servicer and Special Servicer shall each forward copies of any
such inspection reports prepared by it to the Underwriters and the
Controlling Class Representative upon request, subject to payment of a
reasonable fee.
The Special Servicer, in the case of any Specially Serviced Mortgage
Loan and REO Loan, and the Master Servicer, in the case of all other Mortgage
Loans, shall each, consistent with the Servicing Standard, use reasonable
efforts to obtain quarterly and annual operating statements and rent rolls with
respect to each of the related Mortgaged Properties and REO Properties. The
Special Servicer shall, promptly following receipt, deliver copies of the
operating statements and rent rolls received or obtained by it to the Master
Servicer, and the Master Servicer shall promptly deliver copies of the operating
statements and rent rolls received or obtained by it to the Trustee, the Special
Servicer or any Controlling Class Certificateholder, in each case upon request.
Within 30 days after receipt by the Master Servicer or the Special
Servicer of any annual operating statements with respect to any Mortgaged
Property or REO Property, as applicable, each of the Master Servicer and the
Special Servicer shall prepare or update and forward to the Trustee, upon
request, and each other an NOI Adjustment Worksheet for such Mortgaged Property
or REO Property (with the annual operating statements attached thereto as an
exhibit).
The Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Loan, and the Master Servicer with respect to each other
Mortgage Loan, shall each prepare and maintain and forward to each other one
Operating Statement Analysis for each Mortgaged Property and REO Property, as
applicable. The Operating Statement Analysis for each Mortgaged Property and REO
Property is to be updated by each of the Master Servicer and the Special
Servicer, as applicable, within thirty days after its respective receipt of
updated operating statements for such Mortgaged Property or REO Property, as the
case may be. The Master Servicer and the Special Servicer shall each use the
"Normalized" column from the NOI Adjustment Worksheet for any Mortgaged Property
or REO Property, as the case may be, to update the corresponding Operating
Statement Analysis and shall use any operating statements received with respect
to any Mortgaged Property or REO Property, as the case may be, to prepare the
NOI Adjustment Worksheet for such property. Copies of Operating Statement
Analyses and NOI Adjustment Worksheets are to be made available by the Master
Servicer to the Trustee, the Special Servicer or any Controlling Class
Certificateholder, in
<PAGE>
each case upon request.
(b) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to the 8th day of each month (or, if such 8th day is not a
Business Day, the Business Day immediately preceding) the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties,
providing the required information as of the end of the preceding calendar
month: (i) a CSSA Property File Report; and (ii) a Comparative Financial Status
Report. Not later than 2:00 p.m. (New York City time) on the second Business Day
following the 8th day of each month (or, if such 8th day is not a Business Day,
the Business Day immediately preceding), the Special Servicer shall deliver or
cause to be delivered to the Master Servicer the following reports with respect
to the Specially Serviced Mortgage Loans, any REO Properties and, to the extent
that the subject information relates to when they were Specially Serviced
Mortgage Loans, any Corrected Mortgage Loans: (i) a Delinquent Loan Status
Report; (ii) a Loan Payoff Notification Report; (iii) an Historical Loss
Estimate Report; (iv) an Historical Loan Modification Report; and (v) an REO
Status Report.
(c) Not later than 2:00 p.m. (New York City time) on the third
Business Day after the 8th day of each month (or, if such 8th day is not a
Business Day, the Business Day immediately preceding), the Master Servicer
shall deliver or cause to be delivered to the Trustee, the Rating Agencies,
the Special Servicer and, upon request, any Controlling Class
Certificateholder: (i) the most recent Historical Loan Modification Report,
Historical Loss Estimate Report and REO Status Report received from the
Special Servicer pursuant to Section 3.12(b); (ii) the most recent CSSA
Property File Report, Delinquent Loan Status Report, Comparative Financial
Status Report and Loan Payoff Notification Report (in each case combining the
reports prepared by the Special Servicer and the Master Servicer); and (iii)
a Watch List Report with information that is current as of the Determination
Date occurring in such month; provided that, with respect to any Long Due
Date Mortgage Loan subject to a Sub-Servicing Agreement, for which Mortgage
Loan the Master Servicer has not received the relevant information or report
from the related Sub-Servicer on or prior to the Business Day immediately
preceding the day on which the Master Servicer is required to deliver such
report to the Trustee, the information shall be current as of the
Determination Date occurring in the prior month. The Master Servicer shall
include on one of such reports updated information as of the applicable
Determination Date regarding the amount of accrued and unpaid interest on
Advances in accordance with Section 3.03(d) and/or 4.03(d), such information
to be presented on a loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder the reports set forth in Section 3.12(c)
in an electronic format reasonably acceptable to the Master Servicer and the
Trustee. The Master Servicer may, absent manifest error, conclusively rely on
the reports to
<PAGE>
be provided by the Special Servicer pursuant to Section 3.12(b). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(c) to the extent that the
underlying information is solely within the control of the Master Servicer or
the Special Servicer. In the case of information or reports to be furnished by
the Master Servicer to the Trustee pursuant to Section 3.12(c), to the extent
that such information is based on reports to be provided by the Special Servicer
pursuant to Section 3.12(b) and to the extent that such reports are to be
prepared and delivered by the Special Servicer pursuant to Section 3.12(b), the
Master Servicer shall have no obligation to provide such information or reports
until it has received such information or reports from the Special Servicer, and
the Master Servicer shall not be in default hereunder due to a delay in
providing the reports required by Section 3.12(c) caused by the Special
Servicer's failure to timely provide any report required under Section 3.12(b)
of this Agreement.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Rating Agencies, the Depositor, the Underwriters and each
other, on or before April 30 of each year, beginning April 30, 2000 (or, as to
any such year, such earlier date as is contemplated by the last sentence of this
Section 3.13), an Officer's Certificate (the "Annual Performance Certification")
stating, as to the signer thereof, that (i) a review of the activities of the
Master Servicer or the Special Servicer, as the case may be, during the
preceding calendar year (or, in the case of the first such certification, during
the period from the Closing Date to December 31, 1999, inclusive) and of its
performance under this Agreement has been made under such officer's supervision,
(ii) to the best of such officer's knowledge, based on such review, the Master
Servicer or the Special Servicer, as the case may be, has fulfilled all of its
material obligations under this Agreement in all material respects throughout
such preceding calendar year (or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to such officer and
the nature and status thereof), and (iii) the Master Servicer or the Special
Servicer, as the case may be, has received no notice regarding the
qualification, or challenging the status, of any of REMIC I, REMIC II or REMIC
III as a REMIC or the Grantor Trust as a grantor trust, from the Internal
Revenue Service or any other governmental agency or body (or, if it has received
any such notice, specifying the details thereof). Notwithstanding the timing
provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor is required to file a Form 10-K with the
Commission in respect of the Trust covering any particular calendar year, then
the Annual Performance Certification to be delivered by each of the Master
Servicer and the Special Servicer during the following year, shall be delivered
on or before March 15 of such following year.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2000 (or, as
to any such year, such earlier date as is contemplated by the last sentence of
this paragraph), each of
<PAGE>
the Master Servicer and the Special Servicer at its expense shall cause a firm
of independent public accountants (which may also render other services to the
Master Servicer or the Special Servicer) that is a member of the American
Institute of Certified Public Accountants to furnish a statement (the "Annual
Accountants' Report") to the Trustee, the Rating Agencies, the Depositor, the
Underwriters and each other, to the effect that (i) such firm has obtained a
letter of representation regarding certain matters from the management of the
Master Servicer or the Special Servicer, as applicable, which includes an
assertion that the Master Servicer or the Special Servicer, as applicable, has
complied with certain minimum mortgage loan servicing standards (to the extent
applicable to commercial and multifamily mortgage loans), identified in the
Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those sub-servicers. Notwithstanding the timing provided for in the first
sentence of this paragraph, if (as confirmed in writing by the Depositor) the
Depositor is required to file a Form 10-K with the Commission in respect of the
Trust covering any particular calendar year, then the Annual Accountants' Report
to be delivered on behalf of each of the Master Servicer and the Special
Servicer during the following year, shall be delivered on or before March 15 of
such following year.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust Fund pursuant to the Exchange Act, provided that the Master
Servicer and Special Servicer shall each be entitled to charge the Depositor for
any reasonable additional costs and expenses incurred in affording the Depositor
such cooperation.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder and any Certificate Owner (identified as such to the
reasonable satisfaction of the Master Servicer or the Special Servicer as the
case may be), such party), and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner (identified as set forth above), access
to any records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent
<PAGE>
it is prohibited from doing so by applicable law or contract or to the extent
such information is subject to a privilege under applicable law to be asserted
on behalf of the Certificateholders. Such access shall be afforded only upon
reasonable prior written request and during normal business hours at the offices
of the Master Servicer or the Special Servicer, as the case may be, designated
by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, Certificate Owner or any
regulatory authority that may exercise authority over a Certificateholder or
Certificate Owner, the Master Servicer and the Special Servicer may each require
payment from such Certificateholder or Certificate Owner of a sum sufficient to
cover the reasonable costs and expenses of providing such information or access,
including, without limitation, copy charges and reasonable fees for employee
time and for space; provided that no charge may be made if such information or
access was required to be given or made available under applicable law.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property by the end of the third calendar year following the
calendar year in which REMIC I acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either
(i) applies, more than sixty days prior to the end of such third succeeding
year, for and is granted an extension of time (an "REO Extension") by the
Internal Revenue Service to sell such REO Property or (ii) obtains for the
Trustee an Opinion of Counsel, addressed to the Trustee, the Special Servicer
and the Master Servicer, to the effect that the holding by REMIC I of such REO
Property subsequent to the end of such third succeeding year will not result in
the imposition of taxes on "prohibited transactions" (as defined in Section 860F
of the Code) of any of REMIC I, REMIC II or REMIC III or cause any of REMIC I,
REMIC II or REMIC III to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell such REO Property within
such extended period as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any expense incurred by the Special Servicer in
connection with its obtaining the REO Extension contemplated by clause (i) of
the second preceding sentence or its obtaining the Opinion of Counsel
contemplated by clause (ii) of the second preceding sentence, shall be covered
by, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), held on behalf of the
<PAGE>
Trustee in trust for the benefit of the Certificateholders, for the retention of
revenues and other proceeds derived from each REO Property. The REO Account
shall be an Eligible Account. The Special Servicer shall deposit, or cause to be
deposited, in the REO Account, upon receipt, all REO Revenues, Insurance
Proceeds and Liquidation Proceeds received in respect of any REO Property. Funds
in the REO Account (other than any such funds representing Additional Interest)
may be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from the REO Account to
pay itself, as additional special servicing compensation in accordance with
Section 3.11(d), interest and investment income earned in respect of amounts
held in the REO Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the REO Account for any
Collection Period). The Special Servicer shall give notice to the Trustee and
the Master Servicer of the location of the REO Account when first established
and of the new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. On the Business Day following
each Determination Date, the Special Servicer shall withdraw from the REO
Account and deposit into the Custodial Account (or deliver to the Master
Servicer or such other Person as may be designated by the Master Servicer for
deposit into the Custodial Account) the aggregate of all amounts received in
respect of each REO Property during the Collection Period ending on such
Determination Date, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of proceeds and collections in respect of any REO Property
as may be necessary to maintain a reserve of sufficient funds for the proper
operation, management, leasing, maintenance and disposition of such REO Property
(including, without limitation, the creation of a reasonable reserve for
repairs, replacements, necessary capital replacements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
to be incurred during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to the REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property, the
Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
<PAGE>
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code
(either such tax referred to herein as an "REO Tax"), such Mortgaged
Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided, that in the good faith and reasonable
judgment of the Special Servicer, it is commercially reasonable) acquire
such Mortgaged Property as REO Property and so lease or operate such REO
Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall deliver to
the REMIC Administrator, in writing, a proposed plan (the "Proposed Plan")
to manage such property as REO Property. Such plan shall include potential
sources of income, and, to the extent reasonably possible, estimates of
the amount of income from each such source. Upon request of the Special
Servicer, the REMIC Administrator shall advise the Special Servicer of the
REMIC Administrator's federal income tax reporting position with respect
to the various sources of income that the Trust Fund would derive under
the Proposed Plan. After receiving the information described in the
preceding sentence from the REMIC Administrator, the Special Servicer
shall implement the Proposed Plan (after acquiring the respective
Mortgaged Property as REO Property), with any amendments required to be
made thereto as a result of the REMIC Administrator's tax reporting
position.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard and in any case on
the good faith and reasonable judgment of the Special Servicer as to which means
would be in the best interest of the Certificateholders by maximizing (to the
extent commercially reasonable and consistent with Section 3.17(b)) the net
after-tax REO Revenues received by the Trust Fund with respect to such property
and, to the extent consistent with the foregoing, in the same manner as would
prudent mortgage loan servicers and asset managers operating acquired mortgaged
property comparable to the respective Mortgaged Property. In connection with
performing their respective duties under this Section 3.17(a), both the Special
Servicer and the REMIC Administrator may consult with counsel and tax
accountants, the reasonable cost of which consultation shall be covered by, and
be reimbursable as, a Servicing Advance to be made by
<PAGE>
the Special Servicer.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not and will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or, except as contemplated by Section 3.17(a), either result in the
receipt by REMIC I, REMIC II or REMIC III of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an
Adverse REMIC Event. Subject to the foregoing, however, the Special Servicer
shall have full power and authority to do any and all things in connection
therewith as are consistent with the Servicing Standard and, consistent
therewith, shall withdraw from the REO Account, to the extent of amounts on
deposit therein with respect to any REO Property, funds necessary for the proper
operation, management, maintenance and disposition of such REO Property,
including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the preceding sentence
with respect to such REO Property, the Special Servicer shall make Servicing
Advances in such amounts as are necessary for such purposes unless the Special
Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Special
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings. The Special Servicer shall notify the Master
Servicer if it shall have made any such Servicing Advance within the previous
30-day period.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
<PAGE>
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including, without limitation, those listed in Section 3.17(b) above, and
(B) except to the extent that such revenues are derived from any services
rendered by the Independent Contractor to tenants of the REO Property that
are not customarily furnished or rendered in connection with the rental of
real property (within the meaning of Section 1.856-4(b)(5) of the Treasury
Regulations or any successor provision), remit all related revenues
collected (net of its fees and such costs and expenses) to the Special
Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a) and 9.01.
(b) If the Special Servicer has determined in good faith that any
Defaulted Mortgage Loan will become subject to foreclosure or similar
proceedings, the Special Servicer shall promptly so notify in writing the
Trustee and the Master Servicer, and the Trustee, following its receipt of such
notice, shall, within 10 days after receipt of such notice, notify each
Controlling Class Certificateholder. Any Controlling Class Certificateholder may
at its option (with priority among such Holders being given to the Holders of
Certificates
<PAGE>
representing the greater Percentage Interest in the Controlling Class), at any
time after its receipt of such notice and prior to the liquidation thereof,
purchase any such Defaulted Mortgage Loan from the Trust Fund, at a price equal
to the Purchase Price; provided that, if no Controlling Class Certificateholder
has purchased any such Defaulted Mortgage Loan within 10 Business Days after its
receipt of such notice, then (i) for 5 Business Days following the expiration of
such 10 Business Day period, its right to effect such purchase will be
subordinate to the rights of the Master Servicer and the Special Servicer
pursuant to subsection (c) below and (ii) thereafter, its right to effect such
purchase will be of equal priority with the rights of the Special Servicer
pursuant to subsection (c) below. The Purchase Price for any Mortgage Loan
purchased under this paragraph (b) shall be deposited into the Custodial
Account, and the Trustee, upon receipt of an Officers' Certificate from the
Master Servicer to the effect that such deposit has been made, shall release or
cause to be released to the purchasing Controlling Class Certificateholder the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in such Controlling Class
Certificateholder ownership of such Mortgage Loan. In connection with any such
purchase, the Special Servicer shall deliver the related Servicing File to the
purchasing Controlling Class Certificateholder.
(c) If no Controlling Class Certificateholder has purchased any
Defaulted Mortgage Loan within 10 Business Days of its having received notice in
respect thereof pursuant to Section 3.18(b) above, either the Master Servicer or
the Special Servicer (with preference given to the Special Servicer) may at its
option, at any time after the expiration of such 10 Business Day period and with
priority over the Controlling Class Certificateholders for the first 5 Business
Days following such 10 Business Day period, purchase such Mortgage Loan from the
Trust Fund, at a price equal to the Purchase Price. The Purchase Price for any
such Mortgage Loan purchased under this paragraph (c) shall be deposited into
the Custodial Account, and the Trustee, upon receipt of an Officers' Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Master Servicer or the Special Servicer,
as applicable, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Master Servicer or
the Special Servicer, as applicable, the ownership of such Mortgage Loan. In
connection with any such purchase by the Master Servicer, the Special Servicer
shall deliver the related Servicing File to the Master Servicer.
(d) The Special Servicer, at any time, may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or
Section 3.18(c) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would be in the best economic
interests of the Certificateholders (as a collective whole). Such offer shall be
made in a commercially reasonable manner (which, for purposes hereof, includes
an offer to sell without representation or warranty other than customary
warranties of title and condition, if liability for breach thereof is limited to
recourse against the Trust Fund)
<PAGE>
for a period of not less than 10 days. Subject to Sections 3.18(h) and 6.11, the
Special Servicer shall accept the highest cash bid received from any Person that
constitutes a fair price for such Mortgage Loan.
The Special Servicer shall use its best efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a fair
price within the time period provided for by Section 3.16(a). Subject to
Sections 3.18(h) and 6.11, the Special Servicer shall accept the first (and, if
multiple bids are received contemporaneously or subsequently, the highest,
provided that the Special Servicer is not obligated to the first bidder) cash
bid received from any Person that constitutes a fair price for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price for any REO Property within the time constraints imposed by
Section 3.16(a), then (subject to Section 6.11) the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances and, in connection therewith, shall accept the highest
outstanding cash bid, regardless of from whom received.
The Special Servicer shall give the Trustee and the Depositor prior
written notice of its intention to sell any Mortgage Loan or REO Property
pursuant to this Section 3.18(d).
No Interested Person shall be obligated to submit a bid to purchase
any such Mortgage Loan or REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash bid is
from an Interested Person, by the Trustee. In determining whether any bid
received from an Interested Person represents a fair price for any such Mortgage
Loan or REO Property, the Trustee shall be supplied with and shall be entitled
to rely on the most recent appraisal in the related Servicing File conducted in
accordance with this Agreement within the preceding 12-month period (or, in the
absence of any such appraisal or if there has been a material change at the
subject property since any such appraisal, on a new appraisal to be obtained by
the Special Servicer (the cost of which shall be covered by, and be reimbursable
as, a Servicing Advance)). The appraiser conducting any such new appraisal shall
be an Independent Appraiser selected by the Special Servicer if neither the
Special Servicer nor any Affiliate thereof is bidding with respect to a
Defaulted Mortgage Loan or REO Property and selected by the Trustee if either
the Special Servicer or any Affiliate thereof is so bidding. Where any
Interested Person is among those bidding with respect to a Defaulted Mortgage
Loan or REO Property, the Special Servicer shall require that all bids be
submitted to it (and, if the Special Servicer is bidding, shall be submitted by
it to the Trustee) in writing and be accompanied by a refundable deposit of cash
in an amount equal
<PAGE>
to 5% of the bid amount. In determining whether any bid from a Person other than
an Interested Person constitutes a fair price for any such Mortgage Loan or REO
Property, the Special Servicer shall take into account the results of any
appraisal or updated appraisal that it or the Master Servicer may have obtained
in accordance with this Agreement within the prior twelve months, and any
Independent Appraiser shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
The Purchase Price for any such Mortgage Loan or REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.18, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Defaulted Mortgage Loan or REO Property unless
such bid is the highest cash bid received and at least two independent bids (not
including the bid of the Special Servicer or any Affiliate) have been received.
In the event the bid of the Special Servicer or any Affiliate thereof is the
only bid received or is the higher of only two bids received, then additional
bids shall be solicited. If an additional bid or bids, as the case may be, are
received and the original bid of the Special Servicer or any Affiliate thereof
is the highest of all cash bids received, then the bid of the Special Servicer
or such Affiliate shall be accepted provided that the Trustee has otherwise
determined, as provided above in this Section 3.18(e), that such bid constitutes
a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the
Special Servicer shall be unconditional; and, if accepted, the Defaulted
Mortgage Loan or REO Property shall be transferred to the Special Servicer
without recourse, representation or warranty other than customary
representations as to title given in connection with the sale of a mortgage loan
or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above and Section
6.11, the Special Servicer shall act on behalf of the Trustee in negotiating
with independent third parties and taking any other action necessary or
appropriate in connection with the sale of any Defaulted Mortgage Loan or REO
Property, and the collection of all amounts payable in connection therewith. In
connection therewith, the Special Servicer may charge prospective bidders, and
may retain, fees that approximate the Special Servicer's actual costs in the
preparation and delivery of information pertaining to such sales or evaluating
bids without obligation to deposit such amounts into the Custodial Account. Any
sale of a Defaulted Mortgage Loan or any REO Property shall be final and without
recourse to the Trustee or the Trust, and if such sale is consummated in
accordance with the terms of this Agreement, neither the Special Servicer nor
the Trustee shall have any liability to any Certificateholder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property
pursuant to this Section 3.18 shall be for cash only and shall be on a servicing
released basis. The provisions of this Section 3.18 shall in no way limit the
obligations of the Special Servicer to proceed with respect to any Specially
Serviced Mortgage Loan in accordance with Section 3.09 at the same time that
such Mortgage Loan may be offered or eligible for sale in
<PAGE>
accordance with this Section 3.18.
(h) Notwithstanding any of the foregoing paragraphs of this Section
3.18, the Special Servicer shall not be obligated to accept the highest cash bid
if the Special Servicer determines, in accordance with the Servicing Standard,
that rejection of such bid would be in the best interests of the
Certificateholders (as a collective whole), and the Special Servicer may,
subject to Section 6.11, accept a lower cash bid (from any Person other than
itself or an Affiliate) if it determines, in accordance with the Servicing
Standard, that acceptance of such bid would be in the best interests of the
Certificateholders (as a collective whole) (for example, if the prospective
buyer making the lower bid is more likely to perform its obligations or the
terms (other than price) offered by the prospective buyer making the lower bid
are more favorable).
SECTION 3.19. Additional Obligations of the Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Collection Account on each P&I Advance Date, without any right of
reimbursement therefor, an amount equal to the lesser of (i) the aggregate
amount of all Prepayment Interest Shortfalls, if any, incurred in connection
with Principal Prepayments received during the most recently ended Collection
Period with respect to Mortgage Loans that are not Specially Serviced Mortgage
Loans and have not become REO Loans and (ii) the sum of (1) the aggregate of all
Master Servicing Fees received by the Master Servicer for such Collection Period
with respect to the entire Mortgage Pool (but only to the extent of that portion
thereof calculated at a rate of 0.05% per annum with respect to each and every
Mortgage Loan) and (2) the aggregate amount of Prepayment Interest Excesses
received in respect of the entire Mortgage Pool during such Collection Period;
provided, however, that if any Prepayment Interest Shortfall occurs as a result
of the Master Servicer's allowing the Mortgagor to deviate from the terms of the
related Mortgage Loan documents regarding principal prepayments, the Master
Servicer shall be obligated to pay an amount equal to the entire Prepayment
Interest Shortfall with respect to such Mortgage Loan without any limitation of
the kind set forth in clauses (1) and (2) above.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 60 days of the Closing Date) notify the related ground
lessor of the transfer of such Mortgage Loan to the Trust Fund pursuant to this
Agreement and inform such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to the Master Servicer.
(c) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5)
<PAGE>
Business Days (or, in an emergency situation or on an urgent basis, two (2)
Business Days) in advance of the date on which such Servicing Advance is
required to be made hereunder and to be accompanied by such information and
documentation regarding the subject Servicing Advance as the Master Servicer may
reasonably request. The Master Servicer shall have the obligation to make any
such Servicing Advance that it is so requested by the Special Servicer to make,
within ten (10) days of the Master Servicer's receipt of such request. If the
request is timely and properly made, the Special Servicer shall be relieved of
any obligations with respect to a Servicing Advance that it so requests the
Master Servicer to make (regardless of whether or not the Master Servicer shall
make such Servicing Advance). The Master Servicer shall be entitled to
reimbursement for any Servicing Advance made by it at the direction of the
Special Servicer, together with interest thereon in accordance with Sections
3.05(a) and 3.03(d), at the same time, in the same manner and to the same extent
as the Master Servicer is entitled with respect to any other Servicing Advances
made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(c),
the Master Servicer shall not be required to make at the direction of the
Special Servicer, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination.
(d) If payments on the one Mortgage Loan secured by a Mortgaged
Property located in Puerto Rico are subject to withholding under Puerto Rican
law, the Master Servicer shall inform the Trustee of the amount being withheld,
and following conversations held by it or the Special Servicer, as the case may
be, with the related Mortgagor, the basis for such withholding.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(h) below and further
subject to Section 6.11, the Special Servicer (or, under the limited
circumstances set forth in Section 3.20(c), the Master Servicer) may, on behalf
of the Trustee, agree to any modification, waiver or amendment of any term of
any Mortgage Loan and respond to various Mortgagor requests for consent on the
part of the mortgagee (including the lease reviews and lease consents related
thereto), without the consent of the Trustee, any Certificateholder, the Master
Servicer (in the case of any such action taken by the Special Servicer) or,
except as expressly set forth below, the Special Servicer (in the case of any
such action taken by the Master Servicer).
(b) All modifications, waivers or amendments of any Mortgage Loan
(including the lease reviews and lease consents related thereto) shall be in
writing and shall be considered and effected in a manner consistent with the
Servicing Standard.
(c) In the case of any Mortgage Loan other than a Specially Serviced
<PAGE>
Mortgage Loan and subject to the rights of the Special Servicer set forth below,
the Master Servicer shall be responsible for responding to any request by a
Mortgagor for the consent of the mortgagee or a modification, waiver or
amendment of any term thereof provided that such consent or modification, waiver
or amendment would not (except as permitted by Section 3.02(a) hereof) affect
the amount or timing of any of the payment terms of such Mortgage Loan
(including, without limitation, payment terms related to late payment charges),
result in the release of the related Mortgagor from any material term
thereunder, waive any rights thereunder with respect to any guarantor thereof,
relate to the release or substitution of any material collateral for such
Mortgage Loan or relate to any waiver of or granting of consent under a
"due-on-sale" or "due-on-encumbrance" clause. With respect to any action
proposed to be taken by the Master Servicer under this Section 3.20(c) where the
thresholds in clauses (i) through (v) below are exceeded, or which involves the
situations excepted by the previous sentence, the Special Servicer only may take
such action. To the extent consistent with the foregoing, but subject to Section
3.20(f), the Master Servicer shall also be responsible for the following with
respect to the Mortgage Loans (other than Specially Serviced Mortgage Loans):
(i) Approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter to which such financial statements relate;
(ii) Approving routine leasing activity with respect to leases for
less than the lesser of (A) 20,000 square feet and (B) 20% of the related
Mortgaged Property;
(iii) Approving a transfer of equity in a Mortgagor from one current
equity holder to another provided that such transfer of equity does not
(A) affect (if applicable) the status of such Mortgagor or such equity
holder as a special purpose, bankruptcy-remote entity, (B) result in a
change of control of such Mortgagor, (C) cause the transferee to hold more
than 49% of the equity in such Mortgagor or (D) relate to a Mortgage Loan
that represents 2% or more of the then aggregate principal balance of the
Mortgage Pool;
(iv) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (A) relates to a fiscal year in which an
Anticipated Repayment Date occurs, (B) provides for the payment of
operating expenses in an amount equal to more than 110% of the amounts
budgeted therefor for the prior year or (C) provides for the payment of
any material expenses to any affiliate of the Mortgagor (other than with
respect to the payment of the management fee to any property manager if
such management fee is no more than the management fee in effect on the
Cut-off Date); and
(v) Approving a change of the property manager at the request of the
related Mortgagor, provided that (A) the successor property manager is not
affiliated with the Mortgagor and is a nationally or regionally recognized
manager of similar properties
<PAGE>
and (B) the related Mortgage Loan does not represent 2% or more of the
then aggregate principal balance of the Mortgage Pool.
Except as permitted by Section 3.02(a) and this Section 3.20(c), the Master
Servicer may not agree to waive, modify or amend any term of any Mortgage Loan
or respond to any Mortgagor requests for mortgagee consent. Furthermore, the
Master Servicer may not agree to any modification, waiver or amendment of any
term of any Mortgage Loan that would cause REMIC I, REMIC II or REMIC III to
fail to qualify as a REMIC under the Code or result in the imposition of any tax
on "prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions.
(d) Except as provided in Section 3.02(a), Section 3.08 or Section
3.20(e), the Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan that would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Default Interest and other amounts
payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(e), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released; or
(iv) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon.
(e) Notwithstanding Section 3.20(d), but subject to the third
paragraph of this Section 3.20(e), the Special Servicer may (i) reduce the
amounts owing under any Specially Serviced Mortgage Loan by forgiving principal,
accrued interest or any Prepayment Premium or Yield Maintenance Charge, (ii)
reduce the amount of the monthly payment on any Specially Serviced Mortgage
Loan, including by way of a reduction in the related Mortgage Rate, (iii)
forbear in the enforcement of any right granted under any Mortgage Note or
Mortgage relating to a Specially Serviced Mortgage Loan or (iv) accept a
Principal Prepayment on any Specially Serviced Mortgage Loan during any Lockout
Period; provided
<PAGE>
that (A) the related Mortgagor is in monetary default or material non-monetary
default with respect to the Specially Serviced Mortgage Loan or, in the
reasonable, good faith judgment of the Special Servicer, such default is
reasonably foreseeable, (B) in the reasonable, good faith judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Mortgage Loan to Certificateholders on a net present value basis
(the relevant discounting of amounts that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) and (C) such
modification, waiver or amendment would not cause REMIC I, REMIC II or REMIC III
to fail to qualify as a REMIC under the Code or result in the imposition of any
tax on "prohibited transactions" or "contributions" after the Startup Day under
the REMIC Provisions.
In addition, notwithstanding Section 3.20(d), but subject to the
third paragraph of this Section 3.20(e), the Special Servicer may extend the
date on which any Balloon Payment is scheduled to be due in respect of a
Specially Serviced Mortgage Loan if the conditions set forth in the proviso to
the prior paragraph are satisfied and, if the extension is for more than six
months beyond the related Stated Maturity Date, the Special Servicer has
obtained an appraisal, in accordance with the standards of the Appraisal
Institute, of the related Mortgaged Property, performed by an Independent
Appraiser, in connection with such extension, which appraisal supports the
determination of the Special Servicer contemplated by clause (B) of the proviso
to the immediately preceding paragraph.
In no event shall the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) extend the maturity date of any Mortgage Loan which has
a Mortgage Rate below the prevailing interest rate for comparable loans at the
time of such modification as determined by the Special Servicer, unless (A) such
Mortgage Loan is a Balloon Loan, (B) the related Mortgagor has failed to make
the Balloon Payment at its Stated Maturity Date and (C) such Balloon Loan is not
a Specially Serviced Mortgage Loan (other than by reason of the failure to make
its Balloon Payment) and has not been delinquent with respect to a Monthly
Payment (other than the Balloon Payment) in the preceding twelve months, in
which case the Special Servicer may permit one or more extensions at the
then-existing Mortgage Rate for such Mortgage Loan, which extensions shall not
exceed three years in the aggregate (provided that such limitation of extensions
made at below market rate shall not limit the ability of the Special Servicer to
extend the maturity date of any Mortgage Loan at an interest rate at or in
excess of the prevailing rate for comparable loans at the time of such
modification), (iii) if the Mortgage Loan is secured by a Ground Lease (but not
the related fee interest), extend the maturity date of such Mortgage Loan beyond
a date which is less than 10 years prior to the expiration of the term of such
Ground Lease; (iv) reduce the Mortgage Rate to a rate below the-then prevailing
interest rate for comparable loans at the time of such modification, as
determined by the Special Servicer; or (v) defer interest due on any Mortgage
Loan in excess of 10% of the unpaid principal balance of such Mortgage Loan or
defer the collection of interest on any Mortgage Loan without accruing interest
on such deferred interest at a rate at least equal to the Mortgage Rate of such
Mortgage Loan.
<PAGE>
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall attach to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall take any of the following actions unless (1) the mortgagee is not given
discretion under the terms of the related Mortgage Loan or (2) it has received
prior written confirmation from the applicable Rating Agency or Agencies as
specified below that such action will not result in a qualification (in the case
of ratings assigned by Moody's), downgrade or withdrawal of any of the ratings
assigned by such Rating Agency to the Certificates:
(i) with respect to any Mortgaged Property that secures a Mortgage
Loan with an unpaid principal balance that is at least equal to (A) in the
case of Moody's, the lesser of $20,000,000 and 2% of the then aggregate
principal balance of the Mortgage Pool and (B) in the case of DCR, 5% of
the then aggregate principal balance of the Mortgage Pool, the giving of
any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property
manager; and
(ii) with respect to each Mortgage Loan with an unpaid principal
balance that is at least equal to (A) in the case of Moody's, the lesser
of $20,000,000 and 2% of the then aggregate principal balance of the
Mortgage Pool and (B) in the case of DCR, 2% of the then aggregate
principal balance of the Mortgage Pool, the giving of any consent or
approval regarding the transfer of any interest in the related Mortgaged
Property or of any direct or indirect interest in (A) the related
Mortgagor or (B) the general partner(s), managing member(s),
shareholder(s), limited partner(s) or other equity owner(s) of the related
Mortgagor or any other entity required to be a single purpose entity in
respect of such Mortgage Loan.
Any party hereto seeking Rating Agency confirmation with respect to the matters
described above shall deliver a Review Package to such Rating Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, waiver or amendment so permit. The foregoing shall in
<PAGE>
no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note and this Agreement together with interest thereon.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and, further, by the terms of this Agreement and
applicable law, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, and (ii) any related costs
and expenses incurred by it. In no event shall the Special Servicer or Master
Servicer be entitled to payment for such fees or expenses unless such payment is
collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers and the Trustee, in writing, of any
modification, waiver or amendment of any term of any Mortgage Loan (including
fees charged the Mortgagor) agreed to by it and the date thereof, and shall
deliver to the Trustee or any related Custodian for deposit in the related
Mortgage File (with a copy to be delivered to or retained by, as applicable, the
Master Servicer), an original recorded counterpart of the agreement relating to
such modification, waiver or amendment, promptly (and in any event within 30
calendar days) following the execution and recordation thereof.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Interest or late payment charge in respect of any
Mortgage Loan, whether pursuant to Section 3.02(a) or this Section 3.20, the
respective amounts of additional servicing compensation payable to the Master
Servicer and the Special Servicer out of such Default Interest or late payment
charges shall be reduced proportionately based upon the respective amounts that
had been payable thereto out of such Default Interest or late payment charges
immediately prior to such waiver.
(k) If, with respect to any Defeasance Loan under which the lender
can require defeasance in lieu of prepayment, the Master Servicer shall receive
a notice from the related Mortgagor that it intends to prepay the related
Defeasance Loan in accordance with the terms thereof, then, except as set forth
below, the Master Servicer shall, subject to the next paragraph and the related
Mortgage Loan documents, (i) promptly respond to such notice in a manner which
would require that the Mortgagor pledge Defeasance Collateral in lieu of such
prepayment pursuant to the terms of the related Mortgage Note, (ii) notify
Moody's, the Trustee, the Underwriters and the Special Servicer of its request
to the Mortgagor to defease a Mortgage Loan and (iii) upon the written
confirmation from Moody's and, under the circumstances contemplated by the
second following paragraph, DCR that the acceptance of a pledge of the
Defeasance Collateral in lieu of a full prepayment will not result in a
qualification, downgrade or withdrawal of the ratings then assigned by it to any
Class of
<PAGE>
Certificates, take such further action as provided in such Mortgage Note to
effectuate such defeasance, including the purchase and perfection of the
Defeasance Collateral on behalf of the Trustee, as trustee for the registered
holders of LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1.
Notwithstanding the above, but subject to the related Mortgage Loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral in lieu of prepayment under a Defeasance Loan if (i) such defeasance
would occur within two years of the Startup Day, (ii) such Defeasance Loan (or
any applicable agreement executed in connection with the related defeasance)
provides that the Mortgagor will be liable for any shortfalls from the
Defeasance Collateral or otherwise become subjected to recourse liability with
respect to the Defeasance Loan, (iii) all costs to be incurred in connection
with such defeasance (including Rating Agency fees, accountant's fees and costs
incurred in connection with any required opinions of counsel) would not be paid
by the related Mortgagor, or (iv) in the case of a Defeasance Loan having an
unpaid principal balance at least equal to 2% of the then aggregate principal
balance of the Mortgage Pool, Moody's or, under the circumstances contemplated
in the next paragraph, DCR does not confirm in writing to the Master Servicer
that the acceptance of a pledge of the Defeasance Collateral in lieu of a full
prepayment will not result in a qualification, downgrade or withdrawal of the
ratings then assigned by it to any Class of Certificates.
Furthermore, following any defeasance of a Defeasance Loan, the
Master Servicer shall forward a letter to DCR stating that in connection with
the exercise of the defeasance option by the Mortgagor under such Defeasance
Loan: (1) an independent accounting firm certified that the Defeasance
Collateral pledged by such Mortgagor would generate sufficient funds to satisfy
the obligation of such Mortgagor to make all scheduled payments under such
Defeasance Loan when due; (2) such Defeasance Loan was assumed by, and such
Defeasance Collateral is owned by, a Single Purpose Entity; and (3) counsel
acceptable to the Master Servicer delivered an opinion letter to the effect that
the Trustee, on behalf of the Trust, has a first priority, perfected security
interest in such Defeasance Collateral. In the event that the satisfaction of
the foregoing conditions is not provided for under the Mortgage Loan documents
for a Defeasance Loan, the Master Servicer shall take such action as is
necessary to obtain confirmation from each Rating Agency that the defeasance of
such Defeasance Loan would not result in a qualification (in the case of ratings
assigned by Moody's), downgrade or withdrawal of any of the ratings that are
assigned to the Certificates. The foregoing provisions of this paragraph
notwithstanding, the Master Servicer shall not be required to take any action
contrary to the related Mortgage Loan documents.
All expenses related to the defeasance of a Defeasance Loan shall be
charged to the related Mortgagor or other responsible party, but in no event
shall such expenses be borne by the Trust.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
<PAGE>
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Master Servicer shall immediately give notice thereof, and
shall deliver a copy of the related Servicing File, to the Special Servicer and
shall use reasonable efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan either in the Master Servicer's or any of its directors',
officers', employees', affiliates' or agents' possession or control or otherwise
available to the Master Servicer without undue burden or expense, and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event;
provided, however, if the information, documents and records requested by the
Special Servicer are not contained in the Servicing File, the Master Servicer
shall have such period of time as reasonably necessary to make such delivery.
The Special Servicer may conclusively rely on the Master Servicer's
determination that a Servicing Transfer Event has occurred giving rise to a
Mortgage Loan becoming a Specially Serviced Mortgage Loan. The Special Servicer
shall not be liable or in default hereunder for any reasonable act or failure to
act because of or arising out of the Master Servicer's failure to deliver
information, documents or records with respect to any Specially Serviced
Mortgage Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File and all other information, documents and
records that were not part of the Servicing File when it was delivered to the
Special Servicer within five Business Days of the occurrence, to the Master
Servicer (or such other Person as may be directed by the Master Servicer) and
upon giving such notice, and returning such Servicing File, to the Master
Servicer (or such other Person as may be directed by the Master Servicer), the
Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer
<PAGE>
Event exists with respect to another Cross-Collateralized Mortgage Loan in the
same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of newly executed documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
shall provide to the Master Servicer copies of any additional related Mortgage
Loan information, including correspondence with the related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer, the Trustee and each Rating Agency (or such
other Person as may be directed by the Master Servicer) a statement in writing
and in computer readable format (the form of such statement to be agreed upon by
the Master Servicer and the Special Servicer) describing, on a loan-by-loan and
property-by-property basis, (1) insofar as it relates to Specially Serviced
Mortgage Loans and REO Properties, the information described in clauses (vi)
through (xv) of Section 4.02(a) (with respect to information set forth in such
clauses related to prior Distribution Dates and/or periods, the Special Servicer
may conclusively rely on information furnished to it by the Master Servicer or
the Trustee) and, insofar as it relates to the Special Servicer, the information
described in clauses (xxiv) and (xxx) of Section 4.02(a), (2) the amount of all
payments, Insurance Proceeds and Liquidation Proceeds received, and the amount
of any Realized Loss incurred, with respect to each Specially Serviced Mortgage
Loan during the related Collection Period, and the amount of all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Special Servicer with respect to each Specially Serviced Mortgage
Loan and REO Property during the related Collection Period, (4) in writing, a
brief narrative summary of the status of each Specially Serviced Mortgage Loan
and (5) such additional information relating to the Specially Serviced Mortgage
Loans and REO Properties as the Master Servicer reasonably requests to enable it
to perform its responsibilities under this Agreement. Notwithstanding the
foregoing provisions of this subsection (c), the Master Servicer shall maintain
ongoing payment records with respect to each of the Specially Serviced Mortgage
Loans and REO Properties and shall provide the Special Servicer with any
information reasonably available to the Master Servicer required by the Special
Servicer to perform its duties under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects, requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement and, with the exception of Sections
<PAGE>
7.01(a)(x) and (xi), provides for events of default with respect to the
Sub-Servicer substantially the same as those set forth in Section 7.01 (modified
as necessary to apply to the Sub-Servicer's obligations under the Sub-Servicing
Agreement); (ii) provides that if the Master Servicer or the Special Servicer,
as the case may be, shall for any reason no longer act in such capacity
hereunder (including, without limitation, by reason of an Event of Default), the
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the Master
Servicer or the Special Servicer, as the case may be, under such agreement or
may terminate such subservicing agreement without cause and without payment of
any penalty or termination fee (provided, however, that those Sub-Servicing
Agreements in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 60 days thereafter) may only be terminated by the
Trustee or its designee as contemplated by Section 3.22(d) hereof and in such
additional manner as is provided in such Sub-Servicing Agreement); (iii)
provides that the Trustee, for the benefit of the Certificateholders, shall be a
third party beneficiary under such agreement, but that (except to the extent the
Trustee or its designee assumes the obligations of the Master Servicer or the
Special Servicer, as the case may be, thereunder as contemplated by the
immediately preceding clause (ii)) none of the Trustee, the Trust Fund, any
successor Master Servicer or Special Servicer, as the case may be, or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty; (v) does not permit the
Sub-Servicer to enter into or consent to any modification, waiver or amendment
or otherwise take any action on behalf of the Special Servicer contemplated by
Section 3.08, Section 3.09 and Section 3.20 hereof without the consent of such
Special Servicer; and (vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. In
addition, each Sub-Servicing Agreement entered into by the Master Servicer
(including any with an effective date on or before the Closing Date) shall
provide that such agreement shall, with respect to any Mortgage Loan serviced
thereunder, terminate at the time such Mortgage Loan becomes a Specially
Serviced Mortgage Loan (or, alternatively, be subject to the Special Servicer's
rights to service the Mortgage Loan for so long as such Mortgage Loan continues
to be a Specially Serviced Mortgage Loan), and each Sub-Servicing Agreement
entered into by the Special Servicer shall relate only to Specially Serviced
Mortgage Loans and shall terminate with respect to any such Mortgage Loan which
ceases to be a Specially Serviced Mortgage Loan. The Master Servicer and the
Special Servicer each shall deliver to the Trustee and to each other copies of
all Sub-Servicing Agreements, and any amendments thereto and modifications
thereof, entered into by it promptly upon its execution and delivery of such
documents. References in this Agreement to actions taken or to be taken by the
Master Servicer or the Special Servicer include actions taken or to be taken by
a Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer hereunder to make P&I Advances or Servicing Advances shall be deemed to
have been advanced by the Master Servicer or the Special Servicer, as the case
may be, out of its own funds and, accordingly, such P&I Advances or
<PAGE>
Servicing Advances shall be recoverable by such Sub-Servicer in the same manner
and out of the same funds as if such Sub-Servicer were the Master Servicer or
the Special Servicer, as the case may be. For so long as they are outstanding,
Advances shall accrue interest in accordance with Sections 3.03(d) and 4.03(d),
such interest to be allocable between the Master Servicer or the Special
Servicer, as the case may be, and such Sub-Servicer as they may agree. For
purposes of this Agreement, the Master Servicer and the Special Servicer each
shall be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Master Servicer and the Special Servicer each shall
notify the other, the Trustee, the Depositor and the Controlling Class
Certificateholders in writing promptly of the appointment by it of any
Sub-Servicer.
(b) Each Sub-Servicer (i) shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law, and (ii)
except for Bloomfield and CFC Advisory Services Limited Partnership shall be an
approved conventional seller/servicer of mortgage loans for FHLMC or FNMA or a
HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of their respective Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the Mortgage Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 60 days thereafter) that still exists at the time
of such termination: (i) to assume the rights and obligations of the Master
Servicer under such Sub-Servicing Agreement and continue the sub-servicing
arrangements thereunder on the same terms (including without limitation the
obligation to pay the same sub-servicing fee); (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer on such terms as the Trustee or
other successor Master Servicer and such Sub-Servicer shall mutually agree (it
being understood that such Sub-Servicer is under no obligation to accept any
such new Sub-Servicing Agreement or to enter into or continue negotiations with
the Trustee or other successor Master Servicer in which case the existing
Sub-Servicing Agreement shall remain in effect), provided that neither the
Trustee nor any successor Master Servicer shall enter into a new Sub-Servicing
Agreement with a Sub-Servicer that was a party to a Sub-Servicing Agreement as
of the Closing Date, if such new Sub-Servicing Agreement amends, alters or
<PAGE>
fails to restate any rights of Lehman Brothers under the existing Sub-Servicing
Agreement with respect to the termination of the Sub-Servicer and the
appointment of a successor thereto or any rights of Lehman Brothers as a third
party beneficiary under such Sub-Servicing Agreement, unless the successor
Master Servicer has obtained the prior written consent to the terms of such new
Sub-Servicing Agreement from Lehman Brothers; or (iii) to terminate the
Sub-Servicing Agreement if (but only if) an Event of Default (as defined in such
Sub-Servicing Agreement) has occurred and is continuing, without paying any
sub-servicer termination fee, and in any additional manner provided for in such
Sub-Servicing Agreement.
The Sub-Servicing Agreements in effect or being negotiated as of the
Closing Date are listed on Exhibit K hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible.
SECTION 3.23. Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the Trustee, for its own benefit and the benefit of
the Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States of America, and the Master
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the
<PAGE>
Master Servicer, enforceable against the Master Servicer in accordance
with the terms hereof, subject to (A) applicable bankruptcy, receivership,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing Agreements
in effect as of the Closing Date and will review all Sub-Servicing
Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.23(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
<PAGE>
(c) Any successor Master Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.24. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the Trustee, for its own benefit and the benefit of
the Certificateholders, and to the Depositor and the Master Servicer, as of the
Closing Date, that:
(i) The Special Servicer is a corporation, validly existing and in
good standing under the laws of the State of California, and the Special
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good
<PAGE>
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.25. Year 2000 Readiness of the Master Servicer and the
Special Servicer.
The Master Servicer shall take all action reasonably necessary to
assure that its computer-based systems are able to operate and effectively
process data including dates on and after January 1, 2000. At the request of
any party hereto, the Master Servicer shall provide such requesting party
with reasonable assurances of its year 2000 readiness. The Special Servicer
covenants that by August 31, 1999, any custom-made software or hardware
designed, purchased or licensed by the Special Servicer and used thereby in
the course of the operation or management of, or the compiling, reporting
<PAGE>
or generation of data required by this Agreement will not contain any deficiency
(a) in the ability of such software or hardware to identify correctly or perform
calculations or other processing with respect to dates after December 31, 1999,
or (b) that would cause such software or hardware to be no longer fit for the
purpose for which it was intended by reason of the changing of the year from
1999 to 2000.
Without limiting any rights or remedies of the Trust, the
Certificateholders or any other party hereto for a breach under any other
section of this Agreement that may arise out of the failure of the Master
Servicer or the Special Servicer to be year 2000 ready by January 1, 2000, the
sole remedy of the Trust, the Certificateholders and any other party hereto with
respect to a breach on the part of the Master Servicer or the Special Servicer
to comply with this Section 3.25, as applicable, shall be to terminate the
defaulting party in accordance with the applicable provisions of Article VII.
SECTION 3.26. Credit Leases.
Within 30 days after the Closing Date, the Master Servicer shall
notify the insurer under the Lease Enhancement Policy and any Residual Value
Insurance Policy for any Credit Lease Loan that (i) both the Master Servicer and
the Special Servicer shall be sent notices under each such policy and (ii) the
Trustee for the benefit of the Certificateholders shall be the loss payee under
each such policy. In the event that the Master Servicer has actual knowledge of
any event (an "Insured Event") giving rise to a claim under any Lease
Enhancement Policy or Residual Value Insurance Policy, the Master Servicer shall
prepare and file a "proof of loss" form with the appropriate insurer within five
Business Days after receiving notice of any Insured Event under any such policy
and shall diligently process any claims under such policy in accordance with the
Servicing Standard. With respect to each Lease Enhancement Policy and Residual
Value Insurance Policy, the Master Servicer shall review and familiarize itself
with the terms and conditions relating to enforcement of claims and shall
monitor the dates by which any claim must be made or any action must be taken
under such policy to realize the full value thereof for the benefit of the
Certificateholders; and, at least ten Business Days prior to any date on which
any action must be taken under such policy to realize the full value of such
policy for the benefit of the Certificateholders, the Master Servicer shall take
such action, consistent with the Servicing Standard.
The Master Servicer shall abide by the terms and conditions
precedent to payment of claims under the Lease Enhancement Policies and Residual
Value Insurance Policies and take all such action as may be required to comply
with the terms and provisions of such policies in order to maintain such
policies in full force and effect and to make claims thereunder.
The Master Servicer shall make a Servicing Advance with respect to a
Mortgaged Property subject to a Credit Lease in an amount equal to all such
funds as are necessary for the costs of maintenance or repair of a Mortgaged
Property or other obligation
<PAGE>
of the related Mortgagor to the extent the failure to complete such maintenance
or repair or other obligation may give rise to a Maintenance Right or Additional
Right of the related Tenant and provided that the particular Servicing Advance
would not, if made, constitute a Nonrecoverable Servicing Advance. All such
Servicing Advances shall be reimbursable from collections from the related
Mortgagor, the related Reserve Funds or excess cash flow after scheduled debt
service on the related Mortgage Loan or as may be provided in the related Credit
Lease or general collections on the Mortgage Pool if so permitted by Section
3.05(a)(vii). Notwithstanding the foregoing, the Master Servicer shall not make
such Servicing Advance or take such action unless the Master Servicer shall
determine that such Advance or action would not result in liability to the
Master Servicer or the Trust under any applicable law or the Mortgage Loan
documents. The Master Servicer may consult with legal counsel in making such
determination, and the reasonable cost of such consultation shall be covered by,
and be reimbursable, as a Servicing Advance by the Master Servicer. So long as
the related Tenant is making its payments in an amount otherwise sufficient to
make the scheduled Monthly Payments under the Mortgage Loan and the Master
Servicer has not determined that such Servicing Advance plus interest has or
will become a Nonrecoverable Servicing Advance, the Master Servicer may not
transfer the Mortgage Loan to the Special Servicer under clause (c) of the
definition of "Specially Serviced Mortgage Loan". The Master Servicer shall
notify the Special Servicer of any Credit Lease Loan in respect of which it has
made Servicing Advances pursuant to this Section 3.26. No costs incurred by the
Master Servicer in effecting the foregoing payments shall be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permits. The foregoing
shall in no way limit the Master Servicer's ability to charge and collect from
the Mortgagor or the related Tenant such costs, together with interest thereon.
In the event that the Master Servicer receives notice of any
termination of a Lease Enhancement Policy or a Residual Value Insurance Policy,
the Master Servicer shall, within three Business Days after receipt of such
notice, notify the Rating Agencies and the Trustee of such termination in
writing. Upon receipt of such notice, the Master Servicer shall address such
termination in accordance with the Servicing Standard. Any legal fees incurred
in connection with a resolution of such termination of a Lease Enhancement
Policy or a Residual Value Insurance Policy shall be paid by the Master Servicer
and shall be reimbursable to it as a Trust Fund expense (to the extent not
required to be paid, and not actually paid, by the related Mortgagor under the
applicable Mortgage Loan documents).
On each Determination Date, the Master Servicer shall deliver to the
Trustee and the Rating Agencies a report stating with respect to each Credit
Lease Loan as of a date no earlier than three Business Days prior to such
Determination Date: (i) all publicly available ratings of Moody's and S&P for
the related Rated Party as of the Closing Date, the immediately preceding
Determination Date (if any) and the date of such report; and (ii) whether the
related Rated Party has been placed on a "credit watch".
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date prior to the Final Distribution Date,
the Trustee shall, based upon information provided by the Master Servicer and
the Special Servicer, withdraw from the Collection Account and apply the
Available Distribution Amount for such Distribution Date to make distributions
in respect of the Senior Certificates, in the following order of priority, in
each case to the extent of remaining available funds:
(i) to distributions of interest to the Holders of the respective
Classes of Senior Certificates, up to an amount equal to, and pro rata as
among such Classes in accordance with, all Distributable Certificate
Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(ii) to distributions of principal to the Holders of the Class A-1
and Class A-2 Certificates, allocable as between such Classes of
Certificateholders as provided below, up to an amount (not to exceed the
aggregate Class Principal Balance of such Classes of Certificates
outstanding prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date; and
(iii) to distributions to the Holders of the Class A-1 and Class A-2
Certificates, up to an amount equal to, pro rata as between such Classes
of Certificateholders in accordance with, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to each such Class of Certificates and not previously
reimbursed.
On each Distribution Date prior to the earlier of (i) the Class A
Principal Distribution Cross-Over Date and (ii) the Final Distribution Date, the
Trustee shall pay the distributions of principal made on the Class A-1 and Class
A-2 Certificates pursuant to clause (ii) above, first, to the Holders of the
Class A-1 Certificates, until the Class Principal Balance of such Class has been
reduced to zero, and thereafter, to the Holders of the Class A-2 Certificates,
until the Class Principal Balance of such Class has been reduced to zero. On any
Distribution Date coinciding with or following the Class A Principal
Distribution Cross-Over Date, but prior to the Final Distribution Date, the
Trustee shall pay the distributions of principal made on the Class A-1 and Class
A-2 Certificates pursuant to clause (ii) above to the Holders of both the Class
A-1 Certificates and the Class A-2 Certificates, on a pro rata basis, in
accordance with the respective Class Principal Balances of such Classes
outstanding immediately prior to such Distribution Date, until the Class
Principal Balance of each such
<PAGE>
Class has been reduced to zero.
All distributions of interest made in respect of the Class X
Certificates on any Distribution Date pursuant to clause (i) above shall be
deemed to have been made in respect of the Components of the Class X
Certificates, pro rata in accordance with the respective amounts of
Distributable Component Interest in respect of such Components of the Class X
Certificates for such Distribution Date and, to the extent not previously deemed
paid pursuant to this paragraph, for all prior Distribution Dates, if any.
(b) On each Distribution Date prior to the Final Distribution Date,
the Trustee shall, based on information provided by the Master Servicer and the
Special Servicer, withdraw from the Collection Account and apply the Subordinate
Available Distribution Amount for such Distribution Date, for the following
purposes and in the following order of priority, in each case to the extent of
remaining available funds:
(i) to distributions of interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(ii) after the Class Principal Balances of the Class A Certificates
have been reduced to zero, to distributions of principal to the Holders of
the Class B Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A
Certificates pursuant to Section 4.01(a) above).
(iii) to distributions to the Holders of the Class B Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class C
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(v) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class C Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed
<PAGE>
on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(vi) to distributions to the Holders of the Class C Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(vii) to distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(viii) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class D Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(ix) to distributions to the Holders of the Class D Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(x) to distributions of interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xi) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class E Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xii) to distributions to the Holders of the Class E Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
<PAGE>
(xiii) to distributions of interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xiv) after the Class Principal Balance of the Class E Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class F Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xv) to distributions to the Holders of the Class F Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xvi) to distributions of interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xvii) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class G Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xviii) to distributions to the Holders of the Class G Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xix) to distributions of interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xx) after the Class Principal Balance of the Class G Certificates
has been
<PAGE>
reduced to zero, to distributions of principal to the Holders of the Class
H Certificates, up to an amount (not to exceed the Class Principal Balance
of such Class of Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of this
Section 4.01(b));
(xxi) to distributions to the Holders of the Class H Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxii) to distributions of interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxiii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class J Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xxiv) to distributions to the Holders of the Class J Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxv) to distributions of interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxvi) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class K Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
<PAGE>
(xxvii) to distributions to the Holders of the Class K Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxviii) to distributions of interest to the Holders of the Class L
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxix) after the Class Principal Balance of the Class K Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class L Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xxx) to distributions to the Holders of the Class L Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxxi) to distributions of interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxxii) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class M Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xxxiii) to distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates and not previously reimbursed;
(xxxiv) to make distributions to the Holders of the Class R-III
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions
<PAGE>
deemed made in respect of the REMIC II Regular Interests on such
Distribution Date pursuant to Section 4.01(j), over (B) the aggregate
distributions made in respect of the Regular Interest Certificates on such
Distribution Date pursuant to Section 4.01(a) above and Section 4.01(b)(i)
through Section 4.01(b)(xxxiii) above;
(xxxv) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(k), over (B)
the aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(j); and
(xxxvi) to make distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the excess, if any, of (A) the
Available Distribution Amount for such Distribution Date, over (B) the
aggregate distributions made in respect of the other Classes of
Certificates on such Distribution Date pursuant to Section 4.01(a) above
and Sections 4.01(b)(i) through Section 4.01(b)(xxxv) above.
(c) On each Distribution Date, the Trustee shall withdraw from the
Collection Account any amount received in respect of any Mortgage Loan or REO
Loan during the related Collection Period that represents Net Prepayment
Consideration and shall distribute such Net Prepayment Consideration to the
Holders of the respective Classes of Principal Balance Certificates (other than
any Excluded Class) entitled to distributions of principal pursuant to Section
4.01(a) or Section 4.01(b) on such Distribution Date, up to an amount equal to,
and pro rata based on, the respective Prepayment Consideration Entitlements for
such Classes of Certificates for such Distribution Date.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph of this Section 4.01(c) shall be distributed to the Holders of the
Class X Certificates. Any Net Prepayment Consideration distributed in respect of
the Class X Certificates on any Distribution Date shall be deemed to have been
distributed in respect of the respective Components of the Class X Certificates,
on a pro rata basis in accordance with the respective amounts by which the
Component Notional Amounts of such Components were reduced on such Distribution
Date by deemed distributions of principal pursuant to Section 4.01(j).
(d) On each Distribution Date, the Trustee shall withdraw from the
Collection Account any amounts that represent Additional Interest actually
collected on the ARD Loans and any successor REO Loans during the related
Collection Period and shall distribute such amounts among the Holders of the
Class M Certificates.
(e) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such
<PAGE>
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined, in the case of a Principal Balance
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate,
but taking into account, in the case of the Class M Certificates, possible
future distributions of Additional Interest) will be made in a like manner, but
only upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Prior to any termination of the
Trust Fund pursuant to Section 9.01, any distribution that is to be made with
respect to a Certificate in reimbursement of a Realized Loss or Additional Trust
Fund Expense previously allocated thereto, which reimbursement is to occur after
the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the
Certificateholder that surrendered such Certificate as such address last
appeared in the Certificate Register or to any other address of which the
Trustee was subsequently notified in writing. If such check is returned to the
Trustee, then the Trustee, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the Trustee
shall be set aside by the Trustee and held uninvested in trust and credited to
the account of the appropriate Holder. The costs and expenses of locating the
appropriate Holder and holding such funds shall be paid out of such funds. No
interest shall accrue or be payable to any former Holder on any amount held in
trust hereunder. If the Trustee has not, after having taken such reasonable
steps, located the related Holder by the second anniversary of the initial
sending of a check, the Trustee shall, subject to applicable law, distribute the
unclaimed funds to the Class R-III Certificateholders.
(f) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law. The Trustee and the Depositor shall perform their
respective obligations under a Letter of Representations among the Depositor,
the Trustee
<PAGE>
and the initial Depository dated as of the Closing Date.
(g) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Class of Certificates, but taking into account, in the case of
the Class M Certificates, possible future distributions of Additional Interest)
will be made on the next Distribution Date, the Trustee shall, no later than the
second Business Day prior to such Distribution Date, mail to each Holder of
record on such date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the
Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for
<PAGE>
cancellation by the second anniversary of the delivery of the second notice, the
Trustee shall, subject to applicable law, distribute to the Class R-III
Certificateholders all unclaimed funds and other assets which remain subject
thereto.
(i) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Notwithstanding any other provision of this Agreement, any
Puerto Rican withholding tax imposed on interest payments received by any REMIC
Pool with respect to a Mortgage Loan secured by a Mortgaged Property located in
Puerto Rico as a result of a Certificateholder's ownership of more than 50% of
the related Mortgagor, shall, if known to the Trustee, be specially allocated to
such Certificateholder and the amount of such tax shall be treated as
distributed to such Certificateholder.
(j) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the Final Distribution
Date) pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) or Section
9.01 shall be deemed to have first been distributed from REMIC II to REMIC III
in respect of the Corresponding REMIC II Regular Interest for such Class of
Certificates; and all distributions made in respect of the Class X Certificates
on each Distribution Date pursuant to Section 4.01(a), Section 4.01(c) or
Section 9.01, and allocable to any particular Component of such Class of
Certificates, shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of the Corresponding REMIC II Regular Interest for such
Component. In each case, if such distribution on any such Class of Certificates
was a distribution of interest, of principal, of additional interest (in the
form of Net Prepayment Consideration) or in reimbursement of any Realized Losses
and Additional Trust Fund Expenses previously allocated to such Class of
Certificates, then the corresponding distribution deemed to be made on a REMIC
II Regular Interest pursuant to the preceding sentence shall be deemed to also
be a distribution of interest, of principal, of additional interest (in the form
of Net Prepayment Consideration) or in reimbursement of any Realized Losses and
Additional Trust Fund Expenses, as the case may be, previously allocated to
REMIC III in respect of such REMIC II Regular Interest. The actual distributions
made by the Trustee on each Distribution Date in respect of the REMIC III
Certificates pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) or
Section 9.01, as applicable, shall be deemed to have been so made from the
amounts deemed distributed in respect of the REMIC II Regular Interests on such
Distribution Date pursuant to this Section 4.01(j). Notwithstanding the deemed
distributions on the REMIC II Regular Interests described in this Section
4.01(j), actual distributions of funds from the Collection Account shall be made
only in accordance with Section 4.01(a), Section 4.01(b), Section 4.01(c),
Section 4.01(d) or Section 9.01, as applicable.
<PAGE>
(k) On each Distribution Date, including the Final Distribution
Date, the Available Distribution Amount for such date shall be deemed to have
first been distributed from REMIC I to REMIC II in respect of the REMIC I
Regular Interests, in each case to the extent of the remaining portions of such
funds, for the following purposes and in the following order of priority:
(i) as deemed distributions of interest in respect of all the REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance
with, all Uncertificated Distributable Interest in respect of each REMIC I
Regular Interest for such Distribution Date and, to the extent not
previously deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal in respect of all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, as to each REMIC I Regular Interest, the portion of the
Principal Distribution Amount for such Distribution Date attributable to
the related Mortgage Loan (or successor REO Loan); and
(iii) as deemed distributions in respect of all the REMIC I Regular
Interests, up to an amount equal to, pro rata in accordance with, and in
reimbursement of, any Realized Losses and Additional Trust Fund Expenses
previously allocated to each REMIC I Regular Interest (with compounded
interest).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date shall, in each case, be deemed to
have been distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interest corresponding to the prepaid Mortgage Loan or REO Loan, as the case may
be, in respect of which such premium or charge was received.
SECTION 4.02. Statements to Certificateholders; CSSA Loan Periodic
Update File Report.
(a) On each Distribution Date, the Trustee shall provide or make
available electronically to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Representative, each
Rating Agency, the Holders of each Class of Certificates and, upon their written
request to the Trustee, any Certificate Owners of the Book-Entry Certificates as
may be identified to the reasonable satisfaction of the Trustee, a statement,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), based on information provided to it by the Master Servicer and the
Special Servicer, setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal
<PAGE>
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Premiums, Yield Maintenance Charges and Additional Interest,
respectively;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reimbursement
of previously allocated Realized Losses and Additional Trust Fund
Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect of the
prior Distribution Date pursuant to Section 4.03(a), including, without
limitation, any amounts applied pursuant to Section 4.03(a)(ii);
(vii) (A) the aggregate amount of unreimbursed P&I Advances that had
been outstanding at the close of business on the related Determination
Date and the aggregate amount of interest accrued and payable to the
Master Servicer or the Trustee in respect of such unreimbursed P&I
Advances in accordance with Section 4.03(d) as of the close of business on
the related Determination Date and (B) the aggregate amount of
unreimbursed Servicing Advances that had been outstanding as of the close
of business on the related Determination Date and the aggregate amount of
interest accrued and payable to the Master Servicer, the Special Servicer
or the Trustee in respect of such unreimbursed Servicing Advances in
accordance with Section 3.03(d) as of the close of business on the related
Determination Date;
(viii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date
and the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Mortgage Loans (other than REO Loans) as of the close of business on
the related Determination Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date) and aggregate Stated
Principal Balance
<PAGE>
(immediately after such Distribution Date) of Mortgage Loans (A)
delinquent one month, (B) delinquent two months, (C) delinquent three or
more months, (D) as to which foreclosure proceedings have been commenced,
and (E) as to which, to the knowledge of the Master Servicer or the
Special Servicer, as applicable, bankruptcy proceedings have commenced in
respect of the related Mortgagor;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date, (C) whether the
delinquency is in respect of its Balloon Payment, (D) whether a notice of
acceleration has been sent to the related Mortgagor and, if so, the date
of such notice, (E) whether an Environmental Assessment of the related
Mortgaged Property has been performed as contemplated by Section 3.09(c)
and, if the assessment is such that the Special Servicer cannot make the
determination set forth in clauses (i) and (ii) of the first sentence of
Section 3.09(c), a brief description of the results of such Environmental
Assessment, and (F) a brief description of the status of any foreclosure
or bankruptcy proceedings or any workout or loan modification negotiations
with the related Mortgagor;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the nature of the Liquidation
Event and, in the case of a Final Recovery Determination, a brief
description of the basis for such Final Recovery Determination, (C) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the Certificates), and (D) the
amount of any Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on the related Determination Date,
the loan number of the related Mortgage Loan, the book value of such REO
Property and the amount of REO Revenues and other amounts, if any,
received with respect to such REO Property during the related Collection
Period (separately identifying the portion thereof allocable to
distributions on the Certificates) and, if available, the Appraised Value
of such REO Property as expressed in the most recent appraisal thereof and
the date of such appraisal;
(xiv) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the loan number of such Mortgage Loan and the Stated Principal
Balance of such Mortgage Loan as of the related Acquisition Date;
(xv) with respect to any REO Property included in the Trust Fund as
to which a Final Recovery Determination was made during the related
Collection Period,
<PAGE>
(A) the loan number of the related Mortgage Loan, (B) a brief description
of the basis for the Final Recovery Determination, (C) the aggregate of
all Liquidation Proceeds and other amounts received with respect to such
REO Property during the related Collection Period (separately identifying
the portion thereof allocable to distributions on the Certificates), (D)
the amount of any Realized Loss in respect of the related REO Loan in
connection with such Final Recovery Determination and (E), if available,
the Appraised Value of such REO Property as expressed in the most recent
appraisal thereof and the date of such appraisal;
(xvi) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of Regular Interest Certificates for
such Distribution Date;
(xvii) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of
the Principal Distribution Amount was not distributed on such Distribution
Date, the portion of the shortfall affecting each Class of Principal
Balance Certificates;
(xviii) the Pass-Through Rate for each Class of Regular Interest
Certificates for such Distribution Date;
(xix) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components thereof (and, in the case
of any Principal Prepayment or other unscheduled collection of principal
received during the related Collection Period, the loan number for the
related Mortgage Loan and the amount of such prepayment or other
collection of principal);
(xx) the aggregate of all Realized Losses incurred during the
related Collection Period and from the Closing Date and all Additional
Trust Fund Expenses (with a description thereof) incurred during the
related Collection Period and from the Closing Date;
(xxi) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated immediately following such Distribution
Date;
(xxii) the Class Principal Balance of each Class of Principal
Balance Certificates and the Class Notional Amount of the Class X
Certificates, outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein due to the
allocation of Realized Losses and Additional Trust Fund Expenses on such
Distribution Date;
(xxiii) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
<PAGE>
(xxiv) the aggregate amount of interest on Advances paid to the
Master Servicer, the Special Servicer and the Trustee during the related
Collection Period in accordance with Section 3.03(d) and/or Section
4.03(d);
(xxv) (A) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount (including an itemized calculation
thereof) as of the related Determination Date and (B) the aggregate
Appraisal Reduction Amount for all Required Appraisal Loans as of the
related Determination Date;
(xxvi) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution
Date (in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average
extension period (except in the case of subclause (B) and which shall be
zero in the case of subclause (C)), and weighted average anticipated
extension period (in the case of subclause (B)) of Mortgage Loans (A) as
to which the maturity dates have been extended, (B) as to which the
maturity dates are in the process of being extended, (C) that have paid
off and were never extended, (D) as to which the maturity dates had
previously been extended and have paid off and (E) as to which the
maturity dates had been previously extended and are in the process of
being further extended;
(xxvii) the original and then current credit support levels for each
Class of Regular Interest Certificates;
(xxviii) the original and then current ratings for each Class of
Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected (A) during the related Collection Period and
(B) since the Closing Date;
(xxx) (A) the aggregate amount of servicing compensation (separately
identifying the amount of each category of compensation) paid to the
Master Servicer, the Special Servicer and, if payable directly out of the
Trust Fund without a reduction in the servicing compensation otherwise
payable to the Master Servicer or the Special Servicer, to each
Sub-Servicer, during the related Collection Period, and (B) such other
information as the Trustee is required by the Code or other applicable law
to furnish to enable Certificateholders to prepare their tax returns; and
(xxxi) the amounts, if any, actually distributed with respect to the
Class R-I, Class R-II and Class R-III Certificates on such Distribution
Date.
<PAGE>
In the case of information to be furnished pursuant to clauses (i) through (iv)
above, the amounts shall be expressed as a dollar amount in the aggregate for
all Certificates of each applicable Class and per Single Certificate. In the
case of information provided to the Trustee as a basis for information to be
furnished pursuant to clauses (vi) through (xv), (xix), (xx), (xxiv), (xxv),
(xxvi), (xxix) and (xxx) above, insofar as the underlying information is solely
within the control of the Special Servicer or the Master Servicer, the Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer or the Master Servicer.
Absent manifest error, none of the Master Servicer, the Special
Servicer or the Trustee shall be responsible for the accuracy or completeness of
any information supplied to it by a Mortgagor or third party that is included in
any reports, statements, materials or information prepared or provided by the
Master Servicer, the Special Servicer or the Trustee, as applicable. None of the
Trustee, the Master Servicer or the Special Servicer shall have any obligation
to verify the accuracy or completeness of any information provided by a
Mortgagor, a third party or each other.
The Trustee shall forward a copy of each Distribution Date Statement
by mail to the Depository. The Trustee shall make available each month, to
Certificateholders, Certificate Owners, the Underwriters, the Rating Agencies,
prospective investors and any other interested party, via the Trustee's internet
website, all Distribution Date Statements, Mortgage Pool Data Update Reports,
Unrestricted Servicer Reports, CSSA Loan Periodic Update Files and CSSA loan
setup files and any additional files containing substantially similar
information in an alternative format and, with the consent or at the direction
of the Depositor, such other information regarding the Certificates and/or the
Mortgage Loans as the Trustee may have in its possession; provided that, unless:
(i) the particular report or information has been filed with the Commission
pursuant to Section 8.15; (ii) the Depositor consents otherwise; or (iii) the
Depositor has notified the Trustee that the Underwriters have sold the
Non-Registered Certificates to unaffiliated third parties, access to such
reports and information on the Trustee's internet website will be
password-protected to the same extent, and limited to the same Persons, as the
Restricted Servicer Reports. The Trustee shall also make the Distribution Date
Statement available via its electronic bulletin board and its fax-on-demand
service; provided that the Trustee shall have received the notice from the
Depositor contemplated in the preceding sentence regarding the sale of the
Non-Registered Certificates. The Trustee shall make the Restricted Servicer
Reports and CSSA Property File Reports available each month, via the Trustee's
internet website, to any Certificateholder, Certificate Owner, any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee of a Certificate or interest therein, the Underwriters, any Rating
Agency, the Controlling Class Representative or any party hereto, with the use
of a password provided by the Trustee to such person upon receipt by the Trustee
from such Person of a certification substantially in the form of Exhibit W-1 or
Exhibit W-2; provided, however, that the Trustee shall provide such password to
each party hereto, each Certificateholder, the Controlling Class Representative,
the Underwriters and each Rating Agency without requiring such certification.
<PAGE>
In addition, the Trustee is hereby directed and authorized to make available, as
a convenience to interested parties (and not in furtherance of the distribution
of the Prospectus or the Prospectus Supplement under the securities laws), this
Agreement, the Prospectus and the Prospectus Supplement via the Trustee's
internet website. The Trustee will make no representations or warranties as to
the accuracy or completeness of such documents and will assume no responsibility
therefor.
The Trustee's internet website shall be located at
"www.ctslink.com/cmbs" or at such other address as shall be specified by the
Trustee from time to time in the Distribution Date Statement and in one or more
written notices delivered to the other parties hereto, the Controlling Class
Representative (if any), the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's internet website, the Trustee
may require registration and the acceptance of a disclaimer. The Trustee shall
not be liable for the dissemination of information in accordance with this
Agreement. With the prior written consent of the Depositor and subject to any
conditions the Depositor may impose in connection with granting such consent,
the Master Servicer may, but is not required to, make available each month, the
Distribution Date Statement, the Unrestricted Servicer Reports, the Restricted
Servicer Reports, the CSSA Loan Periodic Update File Report, the CSSA loan setup
file, the CSSA Property File Report, the Prospectus and/or the Prospectus
Supplement on its internet website. In connection with providing access to the
Master Servicer's internet website, the Master Servicer may require registration
and the acceptance of a disclaimer on its internet website.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items provided to Certificateholders pursuant to clauses
(i), (ii), (iii) and (iv) of the description of "Distribution Date Statement"
above and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
On each Distribution Date, the Trustee shall make available
electronically or, if so requested, forward by hard copy, to (i) the Trepp Group
(at 477 Madison Avenue, 18th Floor, New York, New York 10022 or such other
address as the Trepp Group may designate), (ii) Intex Solutions, Inc. (at 35
Highland Circle, Needham, Massachusetts 02194, or such other address as Intex
Solutions, Inc. may hereafter designate) and (iii) Charter Research Corporation
(at 262 Washington Street, Boston, Massachusetts 02108, or such other address as
Charter Research Corporation may hereafter designate), a copy of the reports
forwarded to the Holders of the Certificates on such Distribution Date as
described above.
<PAGE>
Upon written request of the Depositor or the Underwriters, without
payment of any fee, and upon written request of any Certificateholders or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) on computer diskette to such party (such
computer diskette and such statements, reports, and/or information thereon to
bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Master Servicer and shall
not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund as may
be provided to it by the Depositor, the Master Servicer or the Special Servicer
or gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time, provided that (A) the Trustee shall give the
Depositor three Business Days' advance notice before doing so, (B) any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (C) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer
<PAGE>
it deems appropriate in its discretion, (D) the Trustee shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine and (E) this provision shall not
prevent the Trustee, whether with or without the consent of the Depositor, from
furnishing information with respect to the Trust Fund and its administration
thereof to any Person, if it reasonably determines that the furnishing of such
information is required by applicable law. The Trustee shall forward to the
Depositor any requests for Additional Information which, for their fulfillment,
require the consent of the Depositor. Nothing herein shall be construed to
impose upon the Trustee any obligation or duty to furnish or distribute any
Additional Information to any Person in any instance.
(b) Not later than 1:00 p.m. (New York City time) on the third
Business Day following the 8th day of each month (or, if such 8th day is not
a Business Day, the Business Day immediately preceding), the Master Servicer
shall furnish to the Trustee, the Depositor, the Underwriters and the Special
Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), with a hard copy of such transmitted information to follow promptly,
an accurate and complete CSSA Loan Periodic Update File Report providing the
required information for the Mortgage Loans as of the Determination Date
occurring in such month; provided that, with respect to any Long Due Date
Mortgage Loan subject to a Sub-Servicing Agreement, for which Mortgage Loan
the Master Servicer has not received the relevant information or report from
the related Sub-Servicer on or prior to the Business Day immediately
preceding the day on which the Master Servicer is required to deliver such
report to the Trustee, the information shall be current as of the
Determination Date occurring in the prior month.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee may conclusively rely on the CSSA Loan
Periodic Update File Report provided to it by the Master Servicer, and the
Trustee shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicer. In the case of information to
be furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the Master Servicer (if other than the Special Servicer or an
Affiliate thereof) shall have no obligation to provide such information until it
has received such information from the Special Servicer, shall not be in default
hereunder due to a delay in providing the CSSA Loan Periodic Update File Report
caused by the Special Servicer's failure to timely provide any report required
under this Agreement and may, absent actual knowledge of an error therein,
conclusively rely on the reports to be provided by the Special Servicer. The
Master Servicer may conclusively rely on any information provided by the
Depositor or any Mortgagor with respect to the CSSA Loan Periodic Update File
Report.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall, subject to Section 4.03(c) below, satisfy its
obligations to
<PAGE>
make P&I Advances with respect to the related Distribution Date, first, by
transferring to the Trustee for deposit in the Collection Account amounts then
held in the Custodial Account for future distribution to Certificateholders in
subsequent months in discharge of such obligations, and second, by remitting its
own funds to the Trustee for deposit in a Collection Account in an amount equal
to the remaining portion of such required P&I Advances. Any amounts held in the
Custodial Account for future distribution and so used to make P&I Advances shall
be appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Custodial Account on or before the next
succeeding Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and interest in respect
of which such P&I Advances were made). If, as of 4:00 p.m., New York City time,
on any P&I Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (704)
593-7735 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (704) 593-7821 (or such
alternative number provided by the Master Servicer to the Trustee in writing) as
soon as possible, but in any event before 5:00 p.m., New York City time, on such
P&I Advance Date. If after such notice by facsimile, the Trustee does not
receive the full amount of such P&I Advances by 10:00 a.m., New York City time,
on the related Distribution Date, then (i) the Trustee shall make the portion of
such P&I Advances that was required to be, but was not, made by the Master
Servicer on such P&I Advance Date and (ii) the provisions of Sections 7.01 and
7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee, as the case may be, in respect of any Distribution Date
shall, subject to Section 4.03(c) below, equal the aggregate of all Monthly
Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each
case net of related Master Servicing Fees and any related Workout Fees, due or
deemed due, as the case may be, in respect of the Mortgage Loans (including,
without limitation, Balloon Mortgage Loans delinquent as to their respective
Balloon Payments) and any REO Loans on their respective Due Dates during the
related Collection Period, in each case to the extent such amount was not paid
by or on behalf of the related Mortgagor or otherwise collected (including
received as net income from REO Properties) as of the close of business on the
related Determination Date; provided that, if it is determined that an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, then, in
the event of subsequent delinquencies thereon, the interest portion of each P&I
Advance, if any, required to be made in respect of such Required Appraisal Loan
during the period that such Appraisal Reduction Amount continues to exist, shall
be reduced (it being herein agreed and acknowledged that there shall be no
reduction in the principal portion of any such P&I Advance due to an Appraisal
Reduction Amount) to equal the product of (x) the amount of the interest portion
of the subject P&I Advance that would otherwise be required without regard to
this proviso, multiplied by (y) a fraction, the numerator of which is equal to
<PAGE>
the Stated Principal Balance of such Mortgage Loan, net of such Appraisal
Reduction Amount, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan; and provided, further, that the Holders of
Certificates representing a majority of the Voting Rights allocated to the most
subordinate Class of Principal Balance Certificates (other than the Class A,
Class B, Class C, Class D or Class E Certificates) will be entitled, to the
extent that it does not adversely affect the distributions with respect to any
more senior Class of Certificates, to elect (by written notice to the Master
Servicer and the Trustee three (3) Business Days prior to the related P&I
Advance Date) not to receive the benefits of P&I Advances on any particular
Distribution Date, in which case each P&I Advance that would otherwise be made
on the related P&I Advance Date will be reduced by that portion thereof
(calculated as described in the next sentence) that would otherwise be
distributable on such Class of Certificates on such Distribution Date. If the
Holders of Certificates representing a majority of the Voting Rights allocated
to the most subordinate Class of Principal Balance Certificates (other than the
Class A, Class B, Class C, Class D or Class E Certificates) elect with respect
to any Distribution Date to forego the benefits of P&I Advances in accordance
with the second proviso to the preceding sentence, then (i) the interest portion
of each P&I Advance shall be reduced by an amount equal to the product of (A)
the amount of the interest portion of such P&I Advance that would otherwise be
required without regard to such election or any related Appraisal Reduction
Amount, multiplied by (B) a fraction, the numerator of which is equal to the
Class Principal Balance of such Class of Principal Balance Certificates
outstanding immediately prior to such Distribution Date, and the denominator of
which is the aggregate Class Principal Balance of all the Classes of Principal
Balance Certificates outstanding immediately prior to such Distribution Date,
and (ii) the principal portion of each P&I Advance shall be reduced by an amount
equal to the product of (X) the amount of the principal portion of such P&I
Advance that would otherwise be required without regard to such election,
multiplied by (Y) a fraction, the numerator of which is equal to the portion of
the Principal Distribution Amount allocable to such Class of Principal Balance
Certificates on such Distribution Date (without regard to such election), and
the denominator of which is equal to the entire Principal Distribution Amount
for such Distribution Date (without regard to such election); provided that such
reductions in the P&I Advances with respect to such Distribution Date may not
result in the Available Distribution Amount for such Distribution Date being
less than the total of all payments distributable in respect of all more senior
Classes of Certificates on such date pursuant to Sections 4.01(a) and 4.01(b);
and provided, further, that no such reduction in the interest portion of a P&I
Advance shall be in addition to the reduction therein caused by an Appraisal
Reduction Amount for the related Mortgage Loan, but rather the applicable
reduction to such interest portion shall equal the greater of the reduction
resulting from such election and the reduction resulting from such Appraisal
Reduction Amount.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that it has made a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a
<PAGE>
Nonrecoverable P&I Advance, shall be evidenced by an Officers' Certificate
delivered to the Trustee and the Depositor on or before the related P&I Advance
Date, setting forth the basis for such determination, together with any other
information that supports such determination, including an appraisal (which
appraisal shall have been conducted within the 12-month period preceding such
determination in accordance with the standards of the Appraisal Institute taking
into account the factors specified in Section 3.18(e)), related Mortgagor
operating statements and financial statements, budgets and rent rolls of the
related Mortgaged Properties (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession), engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer. If, in connection
with the foregoing, it is necessary for the Master Servicer to obtain an
appraisal, the Master Servicer shall so notify the Special Servicer and consult
with the Special Servicer regarding such appraisal. The Trustee shall be
entitled to rely, conclusively, on any determination by the Master Servicer that
a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however,
that if the Master Servicer has failed to make a P&I Advance for reasons other
than a determination by the Master Servicer that such P&I Advance would be
Nonrecoverable Advance, the Trustee shall make such Advance within the time
periods required by Section 4.03(a) unless the Trustee, in good faith, makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable Advance. The Trustee, in determining whether
or not a P&I Advance previously made is, or a proposed P&I Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards applicable
to the Master Servicer hereunder.
(d) Subject to the next sentence and Section 4.03(e), the Master
Servicer and the Trustee shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, compounded annually, accrued
on the amount of each P&I Advance made thereby (with its own funds) for so
long as such P&I Advance is outstanding, such interest to be payable: (i) out
of late payment charges and Default Interest collected (A) on the particular
Mortgage Loan or REO Loan as to which such P&I Advance relates and (B) during
the same Collection Period in which such P&I Advance is reimbursed; and (ii)
to the extent that such late payment charges and Default Interest are
insufficient, but not before the related Advance has been reimbursed pursuant
to this Agreement, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Custodial Account. The Master Servicer shall, in
accordance with Section 3.05(a), reimburse itself or the Trustee, as
applicable, for any outstanding P&I Advance made thereby as soon as
practicable after funds available for such purpose are deposited in the
Custodial Account, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection was received as of the related P&I Advance Date.
(e) If any Monthly Payment due on a Bloomfield Serviced Mortgage
Loan during any calendar month is received by Bloomfield (or any successor
Sub-Servicer), but is not forwarded to the Master Servicer, by the P&I Advance
Date in such month, then the Master Servicer shall make a P&I Advance in
respect of such Mortgage Loan as if the related Mortgagor had failed to make
such Monthly Payment, but the Master Servicer shall not be entitled to
interest on such P&I Advance.
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.
<PAGE>
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates, exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class M, Class L, Class K, Class
J, Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates
shall be reduced sequentially, in that order, in each case, until such excess or
the related Class Principal Balance is reduced to zero (whichever occurs first).
If, after the foregoing reductions, the amount described in clause (i) of the
second preceding sentence still exceeds the amount described in clause (ii) of
such sentence, then the respective Class Principal Balances of the Class A-1
Certificates and the Class A-2 Certificates shall be reduced on a pro rata basis
in accordance with the relative sizes of such Class Principal Balances, until
any such remaining excess is reduced to zero. All such reductions in the Class
Principal Balances of the respective Classes of the Principal Balance
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(j), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests, exceeds (ii) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the Uncertificated Principal Balances of REMIC II
Regular Interest M, REMIC II Regular Interest L, REMIC II Regular Interest K,
REMIC II Regular Interest J, REMIC II Regular Interest H, REMIC II Regular
Interest G, REMIC II Regular Interest F, REMIC II Regular Interest E, REMIC II
Regular Interest D, REMIC II Regular Interest C and REMIC II Regular Interest B
shall be reduced sequentially, in that order, in each case, until such excess or
the related Uncertificated Principal Balance is reduced to zero (whichever
occurs first). If, after the foregoing reductions, the amount described in
clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of such sentence, then the respective Uncertificated Principal
Balances of REMIC II Regular Interest A-1 and REMIC II Regular Interest A-2
shall be reduced on a pro rata basis in accordance with the relative sizes of
such Uncertificated Principal Balances, until any such remaining excess is
reduced to zero. All such reductions in the Uncertificated Principal Balances of
the respective REMIC II Regular Interests shall be deemed to constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(k),
the Uncertified Principal Balance of each REMIC I Regular Interest (after taking
account of such deemed distributions) shall be reduced to equal the Stated
Principal Balance of the related Mortgage Loan or REO Loan, as the case may be,
that will be outstanding immediately following such Distribution Date. Such
reductions shall be deemed to be an allocation of Realized Losses and
<PAGE>
Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer and the Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions and allocations to be made pursuant to Section 4.01 and Article IX
and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Available Distribution Amount for each Distribution Date and shall allocate
such amount among Certificateholders in accordance with this Agreement, and the
Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Special Servicer or Master Servicer. The
calculations by the Trustee of such amounts shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize
agents or attorneys-in-fact in performing any of its obligations under this
Article IV (except the obligation to make P&I Advances), but no such utilization
shall relieve the Master Servicer or the Trustee from any of such obligations,
and the Master Servicer or the Trustee, as applicable, shall remain responsible
for all acts and omissions of any such agent or attorney-in-fact.
<PAGE>
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1, A-2, A-3, A-4 and A-5; provided that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03, beneficial ownership interests in the Registered Certificates and
the Class F and Class G Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Regular Interest
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances or initial Certificate Notional Amounts, as the
case may be, as of the Closing Date of not less than $10,000 in the case of the
Registered Certificates (other than the Class X Certificates), $250,000 in the
case of the Class X Certificates, and $250,000 in the case of the Non-Registered
Certificates (other than the Residual Interest Certificates), and in each such
case in integral multiples of $1 in excess thereof. The Class R-I Certificates,
the Class R-II Certificates and the Class R-III Certificates will be issuable in
denominations representing Percentage Interests in the related Class of not less
than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
<PAGE>
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The offices of the Trustee responsible for its duties as initial
Certificate Register shall be located, as of the Closing Date, at Norwest
Center, Sixth and Marquette, Minneapolis, Minnesota 55479-0113, Attention:
Corporate Trust Services (CMBS) - LB Commercial Mortgage Trust 1999-C1,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1. The Certificate
Registrar may appoint, by a written instrument delivered to the Depositor, the
Master Servicer, the Special Servicer and (if the Trustee is not the Certificate
Registrar) the Trustee, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the predecessor Certificate Registrar shall not be
relieved of any of its duties or responsibilities hereunder by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its duties as
Certificate Registrar. The Depositor, the Trustee (if it is no longer the
Certificate Registrar), the Master Servicer and the Special Servicer shall have
the right to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and
such request states that such Holders desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, 30 days after the receipt of such request,
afford (or cause any other Certificate Registrar to afford) the requesting
Holders access during normal business hours to the most recent list of
Certificateholders held by the Certificate Registrar.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Definitive Non-Registered
Certificate is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Non-Registered Certificates
or a transfer of such Certificate by the Depositor, Lehman Brothers or any of
their respective Affiliates or, in the case of a Book-Entry Non-Registered
Certificate, a transfer thereof to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer
<PAGE>
substantially in the form attached hereto as Exhibit F-1 and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached hereto either as Exhibit F-2A or as Exhibit F-2B; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator, the Trustee or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of a Definitive NonRegistered Certificate does not, in
connection with the subject transfer, deliver to the Certificate Registrar one
of the certifications described in clause (i) of the preceding sentence or the
Opinion of Counsel described in clause (ii) of the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit F-2A or Exhibit F-2B hereto are, with
respect to the subject transfer, true and correct. If a transfer of any interest
in a Book-Entry Non-Registered Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Book-Entry Non-Registered Certificates or a transfer of any interest therein
by the Depositor, Lehman Brothers or any of their respective Affiliates), then
the Certificate Owner desiring to effect such transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached hereto as Exhibit F-2C or as
Exhibit F-2D, or (ii) an Opinion of Counsel to the effect that such transfer may
be made without registration under the Securities Act. If any Transferee of an
interest in a Book-Entry Non-Registered Certificate does not, in connection with
the subject transfer, deliver to the Transferor the Opinion of Counsel or one of
the certifications described in the preceding sentence, then such Transferee
shall be deemed to have represented and warranted that all the certifications
set forth in either Exhibit F-2C or Exhibit F-2D hereto are, with respect to the
subject transfer, true and correct. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate or interest therein without
registration or qualification. Any Certificateholder or Certificate Owner
desiring to effect a transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall, and does hereby agree to,
indemnify the Depositor, Lehman Brothers, the Trustee, the Master Servicer, the
Special Servicer, the REMIC Administrator and the Certificate Registrar against
any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
(c) No transfer of a Non-Registered Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including
<PAGE>
insurance company general accounts, that is subject to ERISA or the Code (each,
a "Plan"), or (B) to any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, if the purchase and holding of such Certificate or
interest therein by the prospective Transferee would result in a violation of
Section 406 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code. Except in connection
with the initial issuance of the Non-Registered Certificates or any transfer of
a Non-Registered Certificate or any interest therein by the Depositor, Lehman
Brothers or any of their respective Affiliates or, in the case of a Book-Entry
Non-Registered Certificate, any transfer of such Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03, the Certificate Registrar shall refuse to register the transfer of a
Definitive NonRegistered Certificate unless it has received from the prospective
Transferee, and any Certificate Owner transferring an interest in a Book-Entry
Non-Registered Certificate shall be required to obtain from its prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of such Certificate or interest therein by such prospective
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee or such Certificate Owner, as the case may be, that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the
Code. It is hereby acknowledged that the forms of certification attached hereto
as Exhibit G-1 (in the case of Definitive Non-Registered Certificates) and
Exhibit G-2 (in the case of ownership interests in Book-Entry Non-Registered
Certificates) are acceptable for purposes of the preceding sentence. If any
Transferee of a Subordinate Certificate (including, without limitation, a Class
B, Class C, Class D or Class E Certificate) or any interest therein does not, in
connection with the subject transfer, deliver to the Certificate Registrar (in
the case of a Definitive Subordinate Certificate) or the Transferor (in the case
of ownership interests in a Book-Entry Subordinate Certificate) any
certification and/or Opinion of Counsel contemplated by the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) the purchase and holding of
such Certificate or interest therein by such Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transaction Class Exemption
95-60.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Interest Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under
clause (ii) (A) below to deliver payments to a
<PAGE>
Person other than such Person and to have irrevocably authorized the
Trustee under clause (ii) (B) below to negotiate the terms of any
mandatory disposition and to execute all instruments of Transfer and to do
all other things necessary in connection with any such disposition. The
rights of each Person acquiring any Ownership Interest in a Residual
Interest Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall be a Permitted Transferee and
shall promptly notify the REMIC Administrator and the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the
Transfer of any Residual Interest Certificate until its receipt, of
an affidavit and agreement substantially in the form attached hereto
as Exhibit H-1 (a "Transfer Affidavit and Agreement"), from the
proposed Transferee, representing and warranting, among other
things, that such Transferee is a Permitted Transferee, that it is
not acquiring its Ownership Interest in the Residual Interest
Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in
a Residual Interest Certificate it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of
this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Interest Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such
Residual Interest Certificate and (2) not to transfer its Ownership
Interest in such Residual Interest Certificate unless it provides to
the Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit H-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to
<PAGE>
give the REMIC Administrator and the Trustee written notice that it
is a "pass-through interest holder" within the meaning of temporary
Treasury regulation Section 1.67- 3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Residual Interest Certificate,
if it is, or is holding an Ownership Interest in a Residual Interest
Certificate on behalf of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Residual Interest Certificate in violation of the provisions of
this Section 5.02(d), then the last preceding Holder of such
Residual Interest Certificate that was in compliance with the
provisions of this Section 5.02(d) shall be restored, to the extent
permitted by law, to all rights as Holder thereof retroactive to the
date of registration of such Transfer of such Residual Interest
Certificate. None of the Depositor, the Trustee or the Certificate
Registrar shall be under any liability to any Person for any
registration of Transfer of a Residual Interest Certificate that is
in fact not permitted by this Section 5.02(d) or for making any
payments due on such Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the provisions of
this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that retroactive
restoration of the rights of the preceding Holder of such Residual
Interest Certificate as described in clause (ii) (A) above shall be
invalid, illegal or unenforceable, the Trustee shall have the right
but not the obligation, to cause the transfer of such Residual
Interest Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee
shall not be liable to any Person having an Ownership Interest in
such Residual Interest Certificate as a result of the Trustee's
exercise of such discretion. Such purported Transferee shall
promptly endorse and deliver such Residual Interest Certificate in
accordance with the instructions of the Trustee. Such Permitted
Transferee may be the Trustee itself or any Affiliate of the
Trustee.
(iii) The REMIC Administrator shall make available to the
Internal Revenue Service and to those Persons specified by the REMIC
Provisions all information furnished to it by the other parties hereto
necessary to compute any tax imposed (A) as a result of the Transfer of an
Ownership Interest in a Residual Interest Certificate to any Person who is
a Disqualified Organization, including the information described in
Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with
respect to the "excess inclusions" of such Residual Interest Certificate
and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or
organization described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Interest Certificate having as among its
<PAGE>
record holders at any time any Person which is a Disqualified
Organization, and each of the other parties hereto shall furnish to the
REMIC Administrator all information in its possession necessary for the
REMIC Administrator to discharge such obligation. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of
the REMIC Administrator for providing such information pursuant to this
subsection (d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee and the REMIC Administrator
the following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify (in the case
of ratings assigned by Moody's), downgrade or withdraw its
then-current rating with respect to any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the REMIC Administrator, obtained at the expense
of the party seeking such modification of, addition to or
elimination of such provisions (but in no event at the expense of
the Trustee, the REMIC Administrator or the Trust), to the effect
that doing so will not (1) cause any of REMIC I, REMIC II or REMIC
III to cease to qualify as a REMIC or be subject to an entity-level
tax caused by the Transfer of any Residual Interest Certificate to a
Person which is not a Permitted Transferee or (2) cause a Person
other than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate,
Subordinate Certificate or Residual Interest Certificate or an interest in any
such Certificate as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Certificate, to the Certificate Owner that is
transferring such interest) a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees,
<PAGE>
one or more new Certificates of the same Class of a like aggregate Percentage
Interest.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest upon surrender of the Certificates to be exchanged
at the offices of the Certificate Registrar maintained for such purpose.
Whenever any Certificates are so surrendered for exchange, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or Certificate Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Registered Certificates and the Class F and Class
G Certificates shall initially be issued as one or more Certificates registered
in the name of the Depository or its nominee and, except as provided in Section
5.03(c) below, a transfer of such Certificates may not be registered by the
Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in Section
5.03(c) below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor
<PAGE>
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, or (iii) after the occurrence of an Event of Default, Certificate
Owners entitled to a majority of the Voting Rights allocated to the Book-Entry
Certificates advise the Depository through the Depository Participants in
writing that the continuation of a book-entry system through the Depository is
no longer in the best interests of the Certificate Owners, the Certificate
Registrar shall notify all affected Certificate Owners, through the Depository,
of the occurrence of any such event and of the availability of Definitive
Certificates to such Certificate Owners requesting the same. Upon surrender to
the Certificate Registrar of the Book-Entry Certificates of any Class thereof by
the Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, the Definitive Certificates
in respect of such Class to the Certificate Owners identified in such
instructions. The Depositor shall provide the Certificate Registrar with an
adequate inventory of Definitive Certificates. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates for purposes of evidencing ownership of any
Class of Registered Certificates, the registered holders of such Definitive
Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or any
Subordinate Certificate) which interests are transferable
<PAGE>
through the book-entry facilities of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor,
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity under the laws of the jurisdiction of
its incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign entity in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Each of the Depositor, the Master Servicer or the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in the qualification (in the case of ratings assigned
by Moody's), downgrade or withdrawal of any rating or ratings then assigned to
any Class of Certificates, and (ii) such successor or surviving Person makes the
applicable representations and warranties set forth in Section 3.23 (in the case
of a successor or surviving Person to the Master Servicer) or Section 3.24 (in
the case of a successor or surviving Person to the Special Servicer), as
applicable.
<PAGE>
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders for the breach of a representation, warranty or covenant made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder. The Depositor, the Master Servicer, the Special Servicer
and any director, officer, employee or agent of the Depositor, the Master
Servicer or the Special Servicer may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer shall be indemnified and
held harmless by the Trust Fund against any loss, liability or reasonable
expense (including legal fees and expenses) incurred in connection with any
legal action or claim relating to this Agreement or the Certificates (including
in connection with the dissemination of information and reports as contemplated
by this Agreement), other than any such loss, liability or expense: (i)
specifically required to be borne by such party without right of reimbursement
pursuant to the terms hereof; (ii) which constitutes a Servicing Advance that is
otherwise reimbursable hereunder; (iii) incurred in connection with any breach
on the part of the party seeking indemnification of a representation, warranty
or covenant made herein; or (iv) incurred by reason of willful misfeasance, bad
faith or negligence on the part of the party seeking indemnification in the
performance of obligations or duties hereunder. None of the Depositor, the
Master Servicer or the Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action, unless such action is related to its
respective duties under this Agreement and either (i) it is specifically
required hereunder to bear the costs of such action or (ii) such action will
not, in its reasonable and good faith judgment, involve it in any ultimate
expense or liability for which it would not be reimbursed hereunder; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any such action which it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Custodial Account as
provided in Section 3.05. In no event shall the Master Servicer or the Special
Servicer be liable or responsible for any action taken or omitted to be taken by
the other of them (unless they are the same Person or Affiliates) or by
<PAGE>
the Depositor, the Trustee or any Certificateholder, subject to the provisions
of Section 8.05(c).
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and, subject to Section 6.09, the Special
Servicer may resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. The Master Servicer and, subject to the
rights of the Controlling Class under Section 6.09 to appoint a successor
special servicer, the Special Servicer shall each have the right to resign at
any other time provided that (i) a willing successor thereto reasonably
acceptable to the Depositor has been found (provided that if the Depositor has
not responded to a request for consent to a successor within 15 days, such
successor shall be deemed approved thereby), (ii) each of the Rating Agencies
confirms in writing that the successor's appointment will not result in a
qualification (in the case of ratings assigned by Moody's), downgrade or
withdrawal of any rating or ratings then assigned to any Class of Certificates,
(iii) the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation and agrees in writing to be bound by the terms and
conditions of this Agreement. Neither the Master Servicer nor the Special
Servicer shall be permitted to resign except as contemplated above in this
Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Sections 3.22 and 4.06, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee and/or the Special
Servicing Fee, as applicable, that accrues pursuant hereto from and after the
date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.
<PAGE>
The Master Servicer and the Special Servicer shall each afford the
Depositor, either Underwriter and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder. Upon reasonable request, the Master Servicer
and the Special Servicer shall each furnish the Depositor, the Underwriters and
the Trustee with its most recent publicly available financial statements and
such other non-proprietary information as the Master Servicer or the Special
Servicer, as the case may be, shall determine in its sole and absolute
discretion as it possesses, which is relevant to the performance of its duties
hereunder and which it is not prohibited by applicable law or contract from
disclosing. The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer and the Special Servicer hereunder and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Master Servicer or Special Servicer hereunder or exercise the rights of
the Master Servicer and the Special Servicer hereunder; provided, however, that
neither the Master Servicer nor the Special Servicer shall be relieved of any of
its obligations hereunder by virtue of such performance by the Depositor or its
designee and, provided further, that the Depositor may not exercise any right
pursuant to Section 7.01 to terminate the Master Servicer or the Special
Servicer as a party to this Agreement. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the Controlling
Class.
<PAGE>
(a) The Holder or Holders of the Certificates evidencing a majority
of the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person to serve as Special Servicer hereunder and to
replace any existing Special Servicer or any Special Servicer that has resigned
or otherwise ceased to serve (including in connection with termination pursuant
to Section 7.01) as Special Servicer. Such Holder or Holders may also select a
representative (the "Controlling Class Representative") from whom the Special
Servicer will seek advice and approval and take direction under certain
circumstances, as described herein. Such Holder or Holders shall so designate a
Person to serve as replacement Special Servicer by the delivery to the Trustee,
the Master Servicer and the existing Special Servicer of a written notice
stating such designation. The Trustee shall, promptly after receiving any such
notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in
the form attached hereto as Exhibit I-1. If such Holders have not replaced the
Special Servicer within 30 days of such Special Servicer's resignation or the
date such Special Servicer has ceased to serve in such capacity, the Trustee
shall designate a successor Special Servicer, subject to removal by the
Controlling Class and appointment of a successor thereto pursuant to the terms
of this Section 6.09. Any designated Person (whether designated by Holders of
the Controlling Class or by the Trustee) shall become the Special Servicer on
the date as of which the Trustee shall have received all of the following: (1)
written confirmation from all of the Rating Agencies that the appointment of
such Person will not result in the qualification (in the case of ratings
assigned by Moody's), downgrade or withdrawal of any rating or ratings then
assigned to any Class of the Certificates; (2) an Acknowledgment of Proposed
Special Servicer in the form attached hereto as Exhibit I-2, executed by the
designated Person, and (3) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer) to the effect that, upon the
execution and delivery of the Acknowledgment of Proposed Special Servicer, the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. Any existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that (i) the resigning Special Servicer shall
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such resignation, whether in
respect of Servicing Advances or otherwise, (ii) if such Special Servicer was
terminated without cause, it shall be entitled to a portion of certain Workout
Fees thereafter received on the Corrected Mortgage Loans (but only if and to the
extent permitted by Section 3.11(c)) and (iii) such Special Servicer shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
resignation. Such resigning Special Servicer shall cooperate with the Trustee
and the replacement Special Servicer in effecting the termination of the
resigning Special Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer within two Business Days to the replacement
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to the Custodial
Account or the REO Account or should have been delivered to the Master Servicer
or that are thereafter received with respect to Specially Serviced Mortgage
Loans and REO Properties. The Trustee shall
<PAGE>
notify the other parties hereto and the Certificateholders of any termination of
the Special Servicer and appointment of a new Special Servicer in accordance
with this Section 6.09.
(b) Notwithstanding the foregoing, if the Controlling Class consists
of Book-Entry Certificates, then the rights of the Holders of the Controlling
Class set forth above in this Section 6.09 may be exercised directly by the
relevant Certificate Owners, provided that the identity of such Certificate
Owners has been confirmed to the Trustee to its reasonable satisfaction.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as otherwise set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that is not expressly prohibited by the
terms hereof and would not, in the Master Servicer's or the Special Servicer's
reasonable, good faith judgment, violate the Servicing Standard, but that, if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
good faith judgment, be considered by other Persons to violate the Servicing
Standard, then the Master Servicer or the Special Servicer may (but need not)
seek the approval of the Certificateholders to such action by delivering to the
Trustee a written notice that (a) states that it is delivered pursuant to this
Section 6.10, (b) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Master Servicer or an Affiliate thereof
or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing to the proposal described in the written notice, and if the Master
Servicer or the Special Servicer shall act as proposed in the written notice
within thirty (30) days, such action shall be deemed to comply with, but not
modify, the Servicing Standard. The Trustee shall be entitled to reimbursement
from the Master Servicer or the Special Servicer, as applicable, for the
reasonable expenses of the Trustee incurred pursuant to this paragraph. It is
not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth
<PAGE>
herein with respect to routine servicing matters arising hereunder, but rather
only in the case of unusual circumstances.
SECTION 6.11. Certain Powers of the Controlling Class
Representative.
(a) The Controlling Class Representative will be entitled to advise
the Special Servicer with respect to the following actions of the Special
Servicer, and notwithstanding anything in any other Section of this Agreement to
the contrary, but in all cases subject to Section 6.11(b), the Special Servicer
will not be permitted to take any of the following actions unless and until it
has notified the Controlling Class Representative in writing and the Controlling
Class Representative has not objected in writing within 10 Business Days of
having been notified thereof and having been provided with all reasonably
requested information with respect thereto (provided that if such written
objection has not been received by the Special Servicer within such 10 Business
Day period, then the Controlling Class Representative's approval will be deemed
to have been given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver of a monetary term
(including, without limitation, the timing of payments) or any material
non-monetary term of a Mortgage Loan;
(iii) any proposed sale of a defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the Purchase Price;
(iv) any acceptance of a discounted payoff;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for a Mortgage Loan (other than in
accordance with the terms of, or upon satisfaction of, such Mortgage
Loan);
(vii) any acceptance of substitute or additional collateral for a
Mortgage Loan (other than in accordance with the terms of such Mortgage
Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause;
and
(ix) any acceptance of an assumption agreement releasing a borrower
from
<PAGE>
liability under a Mortgage Loan;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Controlling Class Representative's response.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein subject to Section 6.11(b). Upon reasonable request, the
Special Servicer shall provide the Controlling Class Representative with any
information in the Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action; provided that such information shall also be provided, in a written
format, to the Trustee, who shall make it available for review pursuant to
Section 8.14(b).
Each of the Master Servicer and the Special Servicer shall notify
the Controlling Class Representative of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with such Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Controlling Class Representative, as
contemplated by Section 6.11(a), may (and the Special Servicer shall ignore and
act without regard to any such advice, direction or objection that the Special
Servicer has determined, in its reasonable, good faith judgment, will) require
or cause the Special Servicer to violate any provision of this Agreement or the
REMIC Provisions, including, without limitation, the Special Servicer's
obligation to act in accordance with the Servicing Standard.
(c) The Controlling Class Representative will have no liability to
the Certificateholders for any action taken, or for refraining from the taking
of any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that the Controlling Class Representative will not
be protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations or duties. Each
Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that the Controlling Class Representative may, and is permitted
hereunder to, have special relationships and interests that conflict with those
of Holders of one or more Classes of Certificates, that the Controlling Class
Representative may, and is permitted hereunder to, act solely in the interests
of the Holders of the Controlling Class, that the Controlling Class
Representative does not have any duties to the Holders of any Class of
Certificates other than the Controlling Class, that the Controlling Class
Representative may, and is permitted hereunder to, take actions that favor
interests of the Holders of the Controlling Class over the interests of the
Holders of one or more other Classes of Certificates, that the Controlling Class
<PAGE>
Representative shall not be deemed to have been grossly negligent or reckless,
or to have acted in bad faith or engaged in willful misconduct by reason of its
having acted solely in the interests of the Holders of the Controlling Class,
and that the Controlling Class Representative shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Controlling Class Representative, any Holder of the Controlling
Class or any director, officer, employee, agent or principal thereof for having
so acted.
(d) Any Holder or Certificate Owner of a Class F, Class G, Class H,
Class J, Class K, Class L or Class M Certificate shall be entitled to receive,
upon request made to any party hereto, a copy of any notice or report required
to be delivered (upon request or otherwise) by such party to a Controlling Class
Certificateholder or the Controlling Class Representative. Any such party shall
be permitted to require payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies. In connection with providing such
copies to a purported Certificate Owner, any party hereto may require evidence
reasonably satisfactory to it of the requesting party's status as a Certificate
Owner. Any Certificateholder or Certificate Owner, by its acceptance thereof,
will be deemed to have agreed to keep such information confidential.
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the Custodial
Account, any amount required to be so deposited or remitted by it under
this Agreement, which failure continues unremedied for one Business Day
following the date on which a deposit or remittance was first required to
be made; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, the Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
Business Day following the date on which a deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer to deposit into, or remit
to the Trustee for deposit into, the Collection Account, any amount
required to be so deposited or remitted by it under this Agreement, which
continues unremedied until 11:00 a.m. (New York City time) on the
applicable Distribution Date; or
(iv) any failure by the Master Servicer or the Special Servicer to
timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three Business Days
following the date on which notice shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by the Trustee as
provided in Section 3.03(c); or
(v) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement, which
continues unremedied for a period of 30 days (15 days in the case of
payment of insurance premiums) after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master Servicer or the Special Servicer, as
the case may be (with a copy to each other party hereto), by the Holders
of Certificates entitled to at least 25% of the Voting Rights, provided,
however, that with respect to any such breach which is not curable within
such 30-day period, the Master Servicer or the Special Servicer, as the
<PAGE>
case may be, shall have an additional cure period of thirty (30) days to
effect such cure so long as the Master Servicer or the Special Servicer,
as the case may be, has commenced to cure such failure within the initial
30-day period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is continuing to pursue, a
full cure; or
(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders and which continues unremedied for a period of 30
days after the date on which written notice of such breach, requiring the
same to be remedied, shall have been given to the Master Servicer or the
Special Servicer, as the case may be, by any other party hereto or to the
Master Servicer or the Special Servicer, as the case may be (with a copy
to each other party hereto), by the Holders of Certificates entitled to at
least 25% of the Voting Rights, provided, however, that with respect to
any such breach which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days so long as the Master Servicer
or the Special Servicer, as the case may be, has commenced to cure such
failure within the initial 30-day period and provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days;
or
(viii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(ix) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
<PAGE>
(x) one or more ratings assigned by either Rating Agency to the
Certificates has been qualified (in the case of ratings assigned by
Moody's), downgraded or withdrawn, or otherwise made the subject of a
"negative" credit watch, which such Rating Agency has determined, and
given notice in writing (including through a publication or newsletter) or
electronically (including through an internet website), is solely or in
material part a result of the Master Servicer or Special Servicer, as the
case may be, acting in such capacity; or
(xi) the receipt by the Trustee of notice from either Rating Agency
to the effect that the Master Servicer or the Special Servicer, as the
case may be, is no longer "approved" by either Rating Agency to act in
such capacity for the Mortgage Pool and such failure to be so "approved"
shall cause a qualification (in the case of ratings assigned by Moody's),
downgrade or withdrawal of the then-current ratings of the Certificates or
cause the Certificates to be made the subject of a "negative" credit watch
unless an approved servicer is substituted therefor.
When a single entity acts as the Master Servicer and the Special Servicer, an
Event of Default in one capacity shall constitute an Event of Default in the
other capacity.
(b) If any Event of Default described in clauses (i) - (ix) of
subsection (a) above shall occur with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") and shall be continuing, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights, the Trustee shall, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies) terminate all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund, other than its rights
as a Certificateholder hereunder. If any Event of Default described in clauses
(x)-(xi) of subsection (a) above shall occur with respect to the Master Servicer
or the Special Servicer (in either case, under such circumstances, for purposes
of this Section 7.01(b), the "Defaulting Party"), the Trustee shall, by notice
in writing (to be sent immediately by facsimile transmission) to the Defaulting
Party (with a copy of such notice to each other party hereto and the Rating
Agencies), terminate all of the rights and obligations (but not the liabilities
for actions and omissions occurring prior thereto) of the Defaulting Party under
this Agreement and in and to the Trust Fund, other than its rights, if any, as a
Certificateholder hereunder within 30 days following the occurrence of such
Event of Default. From and after the receipt by the Defaulting Party of such
written notice of termination, subject to any rights that any Holder of the most
Voting Rights allocated to the Controlling Class may have as set forth in
Section 7.01(d) hereof, all authority and power of the Defaulting Party under
this Agreement, whether with respect to the Certificates (other than as a holder
of any Certificate) or the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this section, and, without
limitation, the Trustee is hereby authorized and empowered to
<PAGE>
execute and deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records, including those
in electronic form, requested thereby to enable the Trustee to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall cooperate with the Trustee in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, (i) if the Master Servicer is
the Defaulting Party, the immediate transfer to the Trustee or a successor
Master Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Master Servicer to the Custodial
Account, the Collection Account, the Defeasance Deposit Account, a Servicing
Account or a Reserve Account or that are thereafter received by or on behalf of
it with respect to any Mortgage Loan or (ii) if the Special Servicer is the
Defaulting Party, the transfer within two Business Days to the Trustee or a
successor Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Special Servicer to the
REO Account, the Custodial Account, a Servicing Account or a Reserve Account or
should have been delivered to the Master Servicer or that are thereafter
received by or on behalf of it with respect to any Mortgage Loan or REO
Property; provided, however, that the Master Servicer and the Special Servicer
each shall, if terminated pursuant to this Section 7.01(b), continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the date of such termination, whether in respect of Advances or
otherwise, and it shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination. Any cost or expenses in connection with
any actions to be taken by any party hereto pursuant to this paragraph shall be
borne by the Defaulting Party and if not paid by the Defaulting Party within 90
days after the presentation of reasonable documentation of such costs and
expenses, such expense shall be reimbursed by the Trust Fund; provided, however,
that the Defaulting Party shall not thereby be relieved of its liability for
such expenses. For purposes of this Section 7.01 and of Section 7.03(b), the
Trustee shall not be deemed to have knowledge of an event which constitutes, or
which with the passage of time or notice, or both, would constitute an Event of
Default described in clauses (i)-(ix) of subsection (a) above unless a
Responsible Officer of the Trustee assigned to and working in the Trustee's
Corporate Trust Office has actual knowledge thereof or unless notice of any
event which is in fact such an Event of Default is received by the Trustee and
such notice references the Certificates, the Trust Fund or this Agreement.
(c) If the Master Servicer is terminated solely due to an Event of
Default under Section 7.01(a)(x) or (xi), and if the terminated Master Servicer
provides the Trustee with the appropriate "request for proposal"
<PAGE>
materials within the five Business Days after such termination, then the Trustee
shall promptly thereafter (using such "request for proposal" materials provided
by the terminated Master Servicer) solicit good faith bids for the rights to
master service the Mortgage Loans under this Agreement from at least three (3)
Persons qualified to act as Master Servicer hereunder in accordance with
Sections 6.02 and 7.02 (any such Person so qualified, a "Qualified Bidder") or,
if three (3) Qualified Bidders cannot be located, then from as many Persons as
the Trustee can determine are Qualified Bidders; provided that, at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and provided, further, that the
Trustee shall not be responsible if less than three (3) or no Qualified Bidders
submit bids for the right to master service the Mortgage Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the termination of Master Servicer. The Trustee shall solicit bids (i) on
the basis of such successor Master Servicer retaining all Sub-Servicers to
continue the primary servicing of the Mortgage Loans pursuant to the terms of
the respective Sub-Servicing Agreements and to enter into a Sub-Servicing
Agreement with the terminated Master Servicer to service each of the Mortgage
Loans not subject to a Sub-Servicing Agreement at a servicing fee rate per annum
equal to the Master Servicing Fee Rate minus five basis points per Mortgage Loan
serviced (each, a "Servicing-Retained Bid") and (ii) on the basis of terminating
each Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate
in accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
the termination of the Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out of pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(c). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
<PAGE>
(d) If the Special Servicer is terminated solely due to any Event of
Default under Section 7.01(a)(x) or (xi), and such terminated Special Servicer
and the Holder of the most Voting Rights allocated to the Controlling Class are
the same Person, such Holder (subject to the rights of the Holders of
Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class to designate a successor Special Servicer pursuant to Section
6.09) may appoint a new Special Servicer within 30 days of the termination of
the prior Special Servicer. Upon receipt of notice from such Holder designating
a Person to serve as replacement Special Servicer, the Trustee shall promptly
deliver to the Rating Agencies an executed Notice and Acknowledgment in the form
attached hereto as Exhibit I-1. Any designated Person shall become the Special
Servicer on the date as of which the Trustee shall have received all of the
following: (1) written confirmation from all of the Rating Agencies that the
appointment of such Person will not result in the qualification (in the case of
ratings assigned by Moody's), downgrade or withdrawal of any rating or ratings
then assigned to any Class of the Certificates; (2) an Acknowledgment of
Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed
by the designated Person; and (3) an Opinion of Counsel (at the expense of the
Person designated to become the Special Servicer) to the effect that, upon the
execution and delivery of the Acknowledgment of Proposed Special Servicer, the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 7.01(c) or Section 7.01(d), be the successor
in all respects to the Master Servicer or the Special Servicer, as the case may
be, in its capacity as such under this Agreement and the transactions set forth
or provided for herein and shall have (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have) all the
responsibilities, duties and liabilities of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer's obligation to make P&I Advances, including, without limitation, in
connection with any termination of the Master Servicer for an Event of Default
described in clause 7.01(a)(iii), the unmade P&I Advances that gave rise to such
Event of Default; provided that any failure to perform such duties or
responsibilities caused by the Master Servicer's or the Special Servicer's, as
the case may be, failure to provide information or monies required by Section
7.01 shall not be considered a default by the Trustee hereunder. The Trustee
shall not be liable for any of the representations and warranties of the
resigning or terminated party or for any losses incurred by the resigning or
terminated party pursuant to Section 3.06 hereunder nor shall the Trustee be
required to purchase any Mortgage Loan hereunder. As compensation therefor, the
Trustee shall be entitled to all fees and other compensation which the resigning
or terminated party would have been entitled to if the resigning or terminated
party had continued to act hereunder. Notwithstanding the above, the Trustee
may, if it shall
<PAGE>
be unwilling to so act as either Master Servicer or Special Servicer, as the
case may be, or shall, if it is unable to so act as either Master Servicer or
Special Servicer, as the case may be, or if the Trustee is not approved as a
master servicer or a special servicer, as the case may be, by any of the Rating
Agencies, or if the Holders of Certificates entitled to a majority of the Voting
Rights so request in writing to the Trustee, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution that meets the requirements of Section 6.02 (including,
without limitation, Rating Agency confirmation of ratings), as the successor to
the Master Servicer or the Special Servicer, as the case may be, hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer or the Special Servicer, as the case may be, hereunder;
provided, however, that in the case of a resigning or terminated Special
Servicer, such appointment shall be subject to the rights of the Holders of
Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class to designate a successor pursuant to Section 6.09 and the
rights of the Holder of Certificates evidencing the most Voting Rights allocated
to the Controlling Class to designate a replacement pursuant to Section 7.01(d).
No appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the resigning or terminated party hereunder. Such successor and the
other parties hereto shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09 or Section 7.01(d) , the Trustee shall give prompt written notice thereof
to Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than 10 days after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall transmit by mail to the Depositor and all Certificateholders and
the Rating Agencies notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
<PAGE>
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii), (iii) or (x)-(xi) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes. Upon any
such waiver of an Event of Default, such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; provided that if the Trustee is acting as Master Servicer or
Special Servicer, it shall act in accordance with the Servicing Standard. Any
permissive right of the Trustee contained in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
<PAGE>
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, REMIC Administrator and
Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01 or 10.02, to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; except as provided
in Section 10.01 or 10.02, the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the
<PAGE>
occurrence of an Event of Default which has not been cured, to exercise
such of the rights and powers vested in it by this Agreement, and to use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, and
except as may be provided in Section 10.01 or 10.02, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible
for all acts and omissions of such agents or attorneys within the scope of
their employment to the same extent as it is responsible for its own
actions and omissions hereunder; and
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is
acting as Master Servicer or the Special Servicer) or the Depositor.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and Section 8.16 and the
signature of the Certificate Registrar and the Authenticating Agent set forth on
each outstanding Certificate, shall not be taken as the statements of the
Trustee, and the Trustee shall not assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature of the Trustee set forth thereon) or
of any Mortgage Loan or related document. The Trustee shall not be accountable
for the use or application by the Depositor of
<PAGE>
any of the Certificates issued to it or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Custodial Account or any other account by or on behalf of the
Depositor, the Master Servicer or the Special Servicer. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee or any agent thereof, in its individual or any other
capacity, may become the owner or pledgee of Certificates with (except as
otherwise provided in the definition of "Certificateholder") the same rights it
would have if it were not the Trustee or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and
by Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Collection Account, prior to any distributions
to be made therefrom on such date, and pay to itself all earned but unpaid
Trustee's Fees, as compensation for all services rendered by the Trustee in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder. The Trustee's Fees (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) shall constitute the Trustee's sole compensation
for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified for and held harmless by the Trust
Fund against any loss, liability or reasonable "out-of-pocket" expense
(including, without limitation, costs and expenses incurred in connection with
removal of the Special Servicer and Master Servicer pursuant to Sections 7.01
and 7.02, costs and expenses of litigation, and of investigation, counsel fees,
damages, judgments and amounts paid in settlement) arising out of, or incurred
in connection with this Agreement or the Certificates ("Trustee Liability");
provided that such loss, liability or expense constitutes an "unanticipated
expense" within the meaning of Treasury regulation Section 1.860G-1(b)(3)(ii);
and provided, further, that neither the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (1) any liability specifically required to be borne thereby pursuant
to the terms hereof, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein, or (3) any
loss, liability or expense that constitutes allocable overhead.
<PAGE>
The provisions of this Section 8.05(b) and of Section 8.05(c) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
(d) The Trustee shall indemnify and hold harmless the Trust Fund
against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust company,
an association or a corporation organized and doing business under the laws of
the United States of America or any state thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state banking authority. If such bank, trust company, association or
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this section the combined capital and surplus of such bank,
trust company, association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Trustee shall at all times maintain a long-term unsecured debt
rating of at least "Aa3" or "AA", as applicable, from each Rating Agency (or, in
the case of either Rating Agency, such other rating as shall not result in the
qualification (in the case of ratings assigned by Moody's), downgrade or
withdrawal of any of the ratings then assigned to the respective Classes of the
Certificates by such Rating Agency, as confirmed in writing by such Rating
Agency). If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07; provided that if the
Trustee shall cease to be so eligible because its combined capital and surplus
is no longer at least $50,000,000 or its long-term unsecured debt rating no
longer conforms to the requirements of the immediately preceding sentence, and
if the Trustee proposes to the other parties hereto to enter into an agreement
with (and reasonably acceptable to) each of them, and if in light of
<PAGE>
such agreement the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause either Rating Agency to
qualify (in the case of ratings assigned by Moody's), downgrade or withdraw any
rating assigned thereby to any Class of Certificates, then upon the execution
and delivery of such agreement the Trustee shall not be required to resign, and
may continue in such capacity, for so long as none of the ratings assigned by
the Rating Agencies to the Certificates is adversely affected thereby. The bank,
trust company, corporation or association serving as Trustee may have normal
banking and trust relationships with the Depositor, the Master Servicer, the
Special Servicer and their respective Affiliates.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee acceptable to the Depositor by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Master Servicer, the Special Servicer and the Certificateholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control), to
timely deliver any current or revised Distribution Date Statement, CSSA Loan
Periodic Update File Report, CSSA Property File Report or other report or
statement required by Section 4.02 and such failure shall continue unremedied
for a period of five days, or if a tax is imposed or threatened with respect to
the Trust Fund by any state in which the Trustee is located or in which it holds
any portion of the Trust Fund, then the Depositor may remove the Trustee and
appoint a successor trustee acceptable to the Depositor and the Master Servicer
by written instrument, in duplicate, which instrument shall be delivered to the
Trustee so removed and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or
<PAGE>
instruments, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee so removed and one complete set to the successor
trustee so appointed. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer and the remaining Certificateholders by the
successor so appointed. In the event that the Trustee is terminated or removed
pursuant to this Section 8.07, all of its rights and obligations under this
Agreement and in and to the Mortgage Loans shall be terminated, other than any
rights or obligations that accrued prior to the date of such termination or
removal (including the right to receive all fees, expenses and other amounts
(including, without limitation, P&I Advances and accrued interest thereon)
accrued or owing to it under this Agreement, with respect to periods prior to
the date of such termination or removal, and no termination without cause shall
be effective until the payment of such amounts to the Trustee).
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to the predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee (at the expense of the Trust Fund if the
Trustee has been removed in accordance with Section 8.07(c) without cause) all
Mortgage Files and related documents and statements held by it hereunder (other
than any Mortgage Files at the time held on its behalf by a third-party
Custodian, which Custodian shall become the agent of the successor trustee), and
the Depositor, the Master Servicer, the Special Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to enable
the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer and the Certificateholders.
<PAGE>
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted, or
with which the Trustee may be consolidated, or any entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any entity succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such entity shall be eligible
under the provisions of Section 8.06, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Trustee shall have the power and shall execute and deliver all instruments
to appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or
<PAGE>
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts vested therein pursuant to
the applicable instrument of appointment and this Section 8.10, shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
either Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that, such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian. In the absence of any other Person appointed in accordance herewith
acting as Custodian, the Trustee agrees to act in such capacity in accordance
with the terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian
<PAGE>
hereunder shall at all times maintain a fidelity bond and errors and omissions
policy in amounts customary for custodians performing duties similar to those
set forth in this Agreement and, in any event, satisfying the same requirements
(including as to the insurer) as are applicable to any such bond or policy
required to be maintained by the Master Servicer pursuant to Section 3.07.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Authenticating Agent. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Trustee
hereby agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 8.12 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent appointed in accordance with this Section 8.12 by giving
written notice of termination to such Authenticating Agent, the Master Servicer
and the Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor
<PAGE>
Authenticating Agent, in which case the Trustee shall give written notice of
such appointment to the Master Servicer, the Certificate Registrar and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent.
SECTION 8.13. Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense any Person with
appropriate tax-related experience to act as REMIC Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as REMIC Administrator, the Trustee agrees to act in such
capacity in accordance with the terms hereof. The appointment of a REMIC
Administrator shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of the REMIC Administrator. The Trustee shall cause any such REMIC Administrator
appointed by it to execute and deliver to the Trustee an instrument in which
such REMIC Administrator shall agree to act in such capacity, with the
obligations and responsibilities herein.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator appointed in accordance with this
Section 8.13 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator appointed in accordance with this Section 8.13 by giving written
notice of termination to such REMIC Administrator, the Master Servicer, and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any REMIC Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.13, the Trustee may
appoint a successor REMIC Administrator, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Special Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor REMIC Administrator shall be
appointed unless eligible under the provisions of this Section 8.13. Any
successor REMIC Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as REMIC
Administrator.
SECTION 8.14. Access to Certain Information.
<PAGE>
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans
within its control that may be required to be provided by this Agreement or by
applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available at its offices for review by the Depositor, the Rating Agencies, the
Controlling Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the Prospectus, the Memorandum and any other
disclosure document relating to the Certificates, in the form most recently
provided to the Trustee by the Depositor or by any Person designated by the
Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the
Trustee since the Closing Date and any amendments hereto or thereto; (iii) all
Certificateholder Reports made available to Certificateholders pursuant to
Section 4.02(a) since the Closing Date; (iv) all Annual Performance
Certifications delivered by the Master Servicer and the Special Servicer,
respectively, to the Trustee since the Closing Date; (v) all Annual Accountants'
Reports caused to be delivered by or on behalf of the Master Servicer and the
Special Servicer, respectively, to the Trustee since the Closing Date; (vi) any
and all notices and reports delivered to the Trustee with respect to any
Mortgaged Property as to which the environmental testing contemplated by Section
3.09(c) revealed that either of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof was not satisfied; (vii) each of the Mortgage
Files, including any and all modifications, waivers and amendments of the terms
of a Mortgage Loan entered into or consented to by the Special Servicer and
delivered to the Trustee pursuant to Section 3.20; (viii) the most recent
appraisal for each Mortgaged Property and REO Property that has been delivered
to the Trustee (each appraisal obtained hereunder with respect to any Mortgaged
Property or REO Property to be delivered to the Trustee by the Master Servicer
or Special Servicer, as applicable, promptly following its having been
obtained); (ix) any and all Officer's Certificates and other evidence delivered
to or by the Trustee to support its, the Master Servicer's or the Special
Servicer's, as the case may be, determination that any Advance was (or, if made,
would be) a Nonrecoverable Advance; (x) any and all information provided to the
Trustee pursuant to Section 6.11(a); (xi) the Schedule of Exceptions to Mortgage
File Delivery prepared by the Trustee pursuant to Section 2.02(a) and any
exception report prepared by the Trustee pursuant to Section 2.02(b); (xii) all
notices of a breach of representation and warranty given by or received by the
Trustee with respect to any party hereto; and (xiii) any Officer's Certificate
delivered to the Trustee by the Special Servicer in connection with a Final
Recovery Determination pursuant to Section 3.09(h). The Trustee shall provide
copies of any and all of the foregoing items upon written request of any of the
parties set forth in the
<PAGE>
previous sentence; however, except in the case of the Rating Agencies, the
Trustee shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies. Upon the reasonable
request of any Certificateholder, or any Certificate Owner identified to the
Trustee to the Trustee's reasonable satisfaction, the Trustee shall request from
the Master Servicer copies (at the expense of such Certificateholder or
Certificate Owner if the Master Servicer or Special Servicer charge a fee to
cover the reasonable cost of making such copies available) of any inspection
reports prepared by the Master Servicer or the Special Servicer, copies of any
operating statements, rent rolls and financial statements obtained by the Master
Servicer or the Special Servicer and copies of any Operating Statement Analyses
and NOI Adjustment Worksheets prepared by the Master Servicer or the Special
Servicer; and, upon receipt, the Trustee shall make such items available to the
requesting Certificateholder or Certificate Owner.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee shall require: (a) in the case
of Certificate Owners, a written confirmation executed by the requesting Person
substantially in the form of Exhibit X-1 (or in such other form as may be
reasonably acceptable to the Trustee) generally to the effect that such Person
is a beneficial holder of Book-Entry Certificates and will keep such information
confidential (except that such Certificate Owner may provide such information to
any other Person that holds or is contemplating the purchase of any Certificate
or interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit X-2 (or in such other form as may be
reasonably acceptable to the Trustee) generally to the effect that such Person
is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and will otherwise keep such information confidential. The Holders
of the Certificates, by their acceptance thereof, will be deemed to have agreed
to keep such information confidential (except that any Holder may provide any
such information obtained by it to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential).
(c) The Trustee shall not be liable for providing or disseminating
information in accordance with Section 8.14(a) or (b).
SECTION 8.15. Reports to the Securities and Exchange Commission and
Related Reports.
(a) With respect to the Trust's fiscal year 1999 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depository) by
<PAGE>
at least 300 Holders and/or Depository Participants having accounts with the
Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and
properly file with the Commission monthly, with respect to the Trust, a
Current Report on Form 8-K with copies of the Distribution Date
Statements, Mortgage Pool Data Update Reports and Unrestricted
Servicer Reports attached as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly notify
the Depositor of the occurrence or existence of any of the matters
identified in Section 11.11(a) and/or Section 8.15(b) (in each case to the
extent that a Responsible Officer of the Trustee has actual knowledge
thereof), (B) cooperate with the Depositor in obtaining all necessary
information in order to enable the Depositor to prepare a Current Report
on Form 8-K reporting any such matter in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, and (C) execute and promptly file with
the Commission any such Current Report on Form 8-K prepared by or on
behalf of the Depositor and delivered to the Trustee; and
(iii) within ninety (90) days following the end of such fiscal year,
prepare, execute and properly file with the Commission, with respect to
the Trust, an Annual Report on Form 10-K which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for electronic filing via the EDGAR system and shall not have any
responsibility to convert any such items (other than those generated by it) to
such format and (y) the Depositor shall be responsible for preparing, executing
and filing (via the EDGAR system within fifteen (15) days following the Closing
Date) a Current Report on Form 8-K reporting the establishment of the Trust and
whereby this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required (or readily
convertible into the format required) for electronic filing via the EDGAR system
any and all items (including, in the case of the Master Servicer and the Special
Servicer, Unrestricted Servicer Reports) contemplated to be filed with the
Commission pursuant to this Section 8.15(a).
(b) At all times during the Trust's fiscal year 1999 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Trustee shall promptly notify the Depositor of the
<PAGE>
occurrence or existence of any of the following matters of which a Responsible
Officer of the Trustee has actual knowledge:
(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Certificateholder Reports filed with the Commission or
has not otherwise been reported to the Depositor pursuant to any other
section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan
or an REO Property, which acquisition or disposition has not otherwise
been reflected in the Certificateholder Reports filed with the Commission
or has not otherwise been reported to the Depositor pursuant to any other
section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of or pertaining to the Trust or any party to this Agreement, or any
actions by or on behalf of the Trust or any party to this Agreement
indicating its bankruptcy, insolvency or inability to pay its obligations;
and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports
filed with the Commission;
provided that (a) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited (except where the Trustee received information regarding
such proceeding from the Master Servicer or the Special Servicer pursuant to
subsection (c) below) to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (b) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.15(b) unless
(x) any such matter contemplated in clause (vi) occurred or related specifically
to the Trust or (y) such Responsible Officer was notified in a written
<PAGE>
instrument addressed to it.
(c) The Master Servicer, the Special Servicer and the Depositor
shall each, as applicable, promptly notify the Trustee of the occurrence or
existence of any of the following matters of which a Servicing Officer thereof
has actual knowledge:
(i) any material legal proceedings, other than ordinary routine
litigation incidental to the business of such Person, to which the Trust
or such Person or such Person on behalf of the Trust is a party or of
which any property included in the Trust Fund is subject, or any threat by
a governmental authority to bring any such legal proceedings; and
(ii) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of such Person or the Trust, or any actions by or on behalf of such Person
or the Trust indicating its bankruptcy, insolvency or inability to pay its
obligations.
(d) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 1999), the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust.
SECTION 8.16. Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the
<PAGE>
Trustee has the full power and authority to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the
Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material
adverse effect on the performance by the Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in
Section 8.16(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations, warranties and
covenants, the party discovering such breach shall give prompt
<PAGE>
written notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 8.16(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.16(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 8.17. Year 2000 Readiness of the Trustee.
The Trustee covenants that by December 31, 1999, any custom-made
software or hardware designed, purchased or licensed by the Trustee and used
thereby in the course of the operation or management of, or the compiling,
reporting or generation of data required by this Agreement will not contain any
deficiency (a) in the ability of such software or hardware to identify correctly
or perform calculations or other processing with respect to dates after December
31, 1999, or (b) that would cause such software or hardware to be no longer fit
for the purpose for which it was intended by reason of the changing of the year
from 1999 to 2000.
<PAGE>
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, the Master Servicer, Lehman Brothers, the Special Servicer or any
Controlling Class Certificateholder of all Mortgage Loans and each REO Property
remaining in REMIC I at a price equal to (1) the sum (x) of the aggregate
Purchase Price of all the Mortgage Loans and (y) the aggregate Appraised Values
of any REO Properties then included in REMIC I, minus (2) if the purchaser is
the Master Servicer or the Special Servicer, the aggregate amount of
unreimbursed Advances made by such Person, together with any interest accrued
and payable to such Person in respect of unreimbursed Advances in accordance
with Section 3.03(d) and, in the case of the Master Servicer, Section 4.03(d),
and any unpaid servicing compensation remaining outstanding (which items shall
be deemed to have been paid or reimbursed to the Master Servicer or the Special
Servicer, as the case may be, in connection with such purchase), and (B) the
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan or REO Property remaining in REMIC I; and (ii) to the
Trustee, the Master Servicer, the Special Servicer and the officers, directors,
employees and agents of each of them of all amounts which may have become due
and owing to any of them hereunder; provided, however, that in no event shall
the trust created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the Court of St. James, living on the date
hereof.
The Depositor, Lehman Brothers, the Special Servicer, any
Controlling Class Certificateholder (with priority among such Holders being
given to the Holder of Certificates representing the greater Percentage Interest
in the Controlling Class) or the Master Servicer, in that order of priority
(with the Depositor having the highest priority), may at its option elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I as
contemplated by clause (i) of the preceding paragraph by giving written notice
to the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that (i) the aggregate Stated Principal Balance
of the Mortgage Pool at the time of such election is less than 1% of the
aggregate Cut-off Date Balance of the Mortgage Pool set forth in the Preliminary
Statement, and (ii) no such Person shall have the right to effect such a
<PAGE>
purchase if, within 30 days following its delivery of a notice of election
pursuant to this paragraph, any other such Person with a higher priority shall
give notice of its election to purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I and shall thereafter effect such purchase in
accordance with the terms hereof. If the Trust Fund is to be terminated in
connection with the Master Servicer's, the Special Servicer's, a Controlling
Class Certificateholder's, Lehman Brothers' or the Depositor's purchase of all
of the Mortgage Loans and each REO Property remaining in REMIC I, the Master
Servicer, the Special Servicer, such Controlling Class Certificateholder, Lehman
Brothers or the Depositor, as applicable, shall deliver to the Trustee for
deposit in the Collection Account not later than the fifth Business Day
preceding the Distribution Date on which the final distribution on the
Certificates is to occur an amount in immediately available funds equal to the
above-described purchase price (exclusive of any portion of such purchase price
which would, if it were then on deposit in the Custodial Account, be payable to
any Person pursuant to any of clauses (ii) through (xv) of Section 3.05(a),
which portion shall be deposited in the Custodial Account). In addition, the
Master Servicer shall transfer to the Collection Account all amounts required to
be transferred thereto on such P&I Advance Date from the Custodial Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Custodial Account that would otherwise be held for
future distribution. Upon confirmation that such final deposits have been made,
the Trustee shall release or cause to be released to the Master Servicer, the
Special Servicer, the purchasing Controlling Class Certificateholder, Lehman
Brothers or the Depositor, as applicable, the Mortgage Files for the remaining
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the Master Servicer, the Special Servicer, the
purchasing Controlling Class Certificateholder, Lehman Brothers or the
Depositor, as applicable, as shall be necessary to effectuate transfer of the
Mortgage Loans and REO Properties to the Depositor, the Master Servicer, the
Special Servicer, Lehman Brothers or such Controlling Class Certificateholder
(or their respective designees), as applicable. Any transfer of Mortgage Loans
pursuant to this paragraph shall be on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Depositor's, the Master Servicer's, the Special Servicer's, Lehman
Brothers' or a Controlling Class Certificateholder's purchase of the Mortgage
Loans and each REO Property remaining in REMIC I, not earlier than the 15th day
and not later than the 25th day of the month next preceding the month of the
final distribution on the Certificates or (b) otherwise during the month of such
final distribution on or before the eighth day of such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated. The Trustee shall give such notice to
the Master Servicer, the Special Servicer and the Depositor at the time such
notice is given to Certificateholders.
<PAGE>
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Collection Account that are allocable to payments on the Class of
Certificates so presented and surrendered. Amounts on deposit in the Collection
Account as of the final Distribution Date, exclusive of any portion thereof that
would be payable to any Person in accordance with clauses (ii) through (viii) of
Section 3.05(b), and further exclusive of any portion thereof that represents
Prepayment Premiums, Yield Maintenance Charges and/or Additional Interest, shall
be allocated in the following order of priority, in each case to the extent of
remaining available funds:
(i) to distributions of interest to the Holders of the respective
Classes of the Senior Certificates, up to an amount equal to, and pro rata
in accordance with, all Distributable Certificate Interest in respect of
each such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, and pro rata in
accordance with, the Class Principal Balance of each such Class of
Certificates outstanding immediately prior to such Distribution Date;
(iii) to distributions to the Holders of the respective Classes of
Class A Certificates, up to an amount equal to, pro rata in accordance
with, and in reimbursement of, all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to each such Class of
Certificates and not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class B Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(v) to distributions of principal to the Holders of the Class B
Certificates, up to an amount equal to the Class Principal Balance of the
Class B Certificates outstanding immediately prior to such Distribution
Date;
(vi) to distributions to the Holders of the Class B Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
B Certificates and not previously reimbursed;
(vii) to distributions of interest to the Holders of the Class C
Certificates up
<PAGE>
to an amount equal to all Distributable Certificate Interest in respect of
the Class C Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(viii) to distributions of principal to the Holders of the Class C
Certificates, up to an amount equal to the Class Principal Balance of the
Class C Certificates outstanding immediately prior to such Distribution
Date;
(ix) to distributions to the Holders of the Class C Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
C Certificates and not previously reimbursed;
(x) to distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xi) to distributions of principal to the Holders of the Class D
Certificates, up to an amount equal to the Class Principal Balance of the
Class D Certificates outstanding immediately prior to such Distribution
Date;
(xii) to distributions to the Holders of the Class D Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
D Certificates and not previously reimbursed;
(xiii) to distributions of interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class E Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xiv) to distributions of principal to the Holders of the Class E
Certificates, up to an amount equal to the Class Principal Balance of the
Class E Certificates outstanding immediately prior to such Distribution
Date;
(xv) to distributions to the Holders of the Class E Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
E Certificates and not previously reimbursed;
(xvi) to distributions of interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class F
<PAGE>
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xvii) to distributions of principal to the Holders of the Class F
Certificates, up to an amount equal to the Class Principal Balance of the
Class F Certificates outstanding immediately prior to such Distribution
Date;
(xviii) to distributions to the Holders of the Class F Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses if any, previously allocated to the Class F
Certificates and not previously reimbursed;
(xix) to distributions of interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class G Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xx) to distributions of principal to the Holders of the Class G
Certificates, up to an amount equal to the Class Principal Balance of the
Class G Certificates outstanding immediately prior to such Distribution
Date;
(xxi) to distributions to the Holders of the Class G Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
G Certificates and not previously reimbursed;
(xxii) to distributions of interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class H Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxiii) to distributions of principal to the Holders of the Class H
Certificates, up to an amount equal to the Class Principal Balance of the
Class H Certificates outstanding immediately prior to such Distribution
Date;
(xxiv) to distributions to the Holders of the Class H Certificates
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
H Certificates and not previously reimbursed;
(xxv) to distributions of interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class J Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
<PAGE>
(xxvi) to distributions of principal to the Holders of the Class J
Certificates, up to an amount equal to the Class Principal Balance of the
Class J Certificates outstanding immediately prior to such Distribution
Date;
(xxvii) to distributions to the Holders of the Class J Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
J Certificates and not previously reimbursed;
(xxviii) to distributions of interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class K Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxix) to distributions of principal to the Holders of the Class K
Certificates, up to an amount equal to the Class Principal Balance of the
Class K Certificates outstanding immediately prior to such Distribution
Date;
(xxx) to distributions to the Holders of the Class K Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
K Certificates and not previously reimbursed;
(xxxi) to distributions of interest to the Holders of the Class L
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class L Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxxii) to distributions of principal to the Holders of the Class L
Certificates, up to an amount equal to the Class Principal Balance of the
Class L Certificates outstanding immediately prior to such Distribution
Date;
(xxxiii) to distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class L Certificates and not previously reimbursed;
(xxxiv) to distributions of interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class M Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxxv) to distributions of principal to the Holders of the Class M
Certificates,
<PAGE>
up to an amount equal to the Class Principal Balance of the Class M
Certificates outstanding immediately prior to such Distribution Date;
(xxxvi) to distributions to the Holders of the Class M Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
M Certificates and not previously reimbursed;
(xxxvii) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(j), over (B)
the aggregate distributions made in respect of the Regular Interest
Certificates on such Distribution Date pursuant to clauses (i) through
(xxxvi) above;
(xxxviii)to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(k), over (B)
the aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(j); and
(xxxix) to distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining after
the distributions to be made on such Distribution Date pursuant to clauses
(i) through (xxxviii) above.
All distributions of interest made in respect of the Class X
Certificates on the final Distribution Date pursuant to clause (i) above, shall
be deemed to have been made in respect of the respective Components of such
Class, pro rata in accordance with the respective amounts of Distributable
Component Interest in respect of such Components for such Distribution Date and,
to the extent not previously deemed paid pursuant to Section 4.01(a), for all
prior Distribution Dates.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in
the Collection Account as of the final Distribution Date (net of any Workout
Fees and/or Liquidation Fees payable therefrom) shall be distributed among the
Holders of the Class X, Class A-1, Class A-2, Class B, Class C, Class D, Class
E, and Class F Certificates in accordance with Section 4.01(c).
Any amounts representing Additional Interest on deposit in the
Collection Account as of the Final Distribution Date shall be distributed to the
Holders of the Class M Certificates in accordance with Section 4.01(d).
<PAGE>
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable law, the Trustee shall distribute to
the Class R-III Certificateholders all unclaimed funds and other assets which
remain subject hereto.
All actual distributions on the respective Classes of REMIC III
Certificates on the final Distribution Date in accordance with foregoing
provisions of this Section 9.01 shall be deemed to first have been distributed
from REMIC I to REMIC II on the various REMIC I Regular Interests in accordance
with Section 4.01(k) and then from REMIC II to REMIC III on the various REMIC II
Regular Interests in accordance with Section 4.01(j).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, Lehman Brothers, any Controlling Class
Certificateholder, the Special Servicer or the Master Servicer purchases all of
the Mortgage Loans and each REO Property remaining in REMIC I as provided in
Section 9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC III)
shall be terminated in accordance with the following additional requirements,
unless the Person effecting such purchase obtains at its own expense and
delivers to the Trustee and the REMIC Administrator, an Opinion of Counsel,
addressed to the Trustee and the REMIC Administrator, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 9.02
will not result in an Adverse REMIC Event:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each of REMIC I, REMIC II and REMIC III pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any
<PAGE>
regulations thereunder as set forth in an Opinion of Counsel obtained at
the expense of the Trust Fund;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Master Servicer, Lehman Brothers,
the purchasing Controlling Class Certificateholder, the Special Servicer
or the Depositor, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each of REMIC I, REMIC II and REMIC III shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the REMIC Administrator to specify the 90-day liquidation
period for each of REMIC I, REMIC II and REMIC III, which authorization shall be
binding upon all successor Certificateholders.
<PAGE>
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I,
REMIC II and REMIC III as a REMIC under the Code and, if necessary, under
applicable state law. Such election will be made on Form 1066 or other
appropriate federal or state Tax Returns for the taxable year ending on the last
day of the calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests
and the Regular Interest Certificates (or, in the case of the X Certificates,
each of the Components of such Class) are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. The Class R-I Certificates, the Class R-II
Certificates and the Class R-III Certificates are hereby designated as the
single class of "residual interests" (within the meaning of Section 860G(a)(2)
of the Code) in REMIC I, REMIC II and REMIC III, respectively. None of the
Master Servicer, the Special Servicer or the Trustee shall (to the extent within
its control) permit the creation of any other "interests" in REMIC I, REMIC II
or REMIC III (within the meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each of REMIC I, REMIC II and REMIC III, and shall act on behalf of the related
REMIC in relation to any tax matter or controversy and shall represent the
related REMIC in any administrative or judicial proceeding relating to an
examination or audit by any governmental taxing authority; provided that the
REMIC Administrator is hereby irrevocably appointed to act and shall act (in
consultation with the Tax Matters Person for each of REMIC I, REMIC II and REMIC
III) as agent and attorney-in-fact for the Tax Matters Person for each of REMIC
I, REMIC II and REMIC III in the performance of its duties as such.
(e) For purposes of Treasury regulation Section 1.860G-1(a)(4)(iii),
the related Legal Final Distribution Date has been designated the "latest
possible maturity date" of each REMIC I Regular Interest, each REMIC II Regular
Interest and each Class of Regular Interest Certificates (or, in the case of the
Class X Certificates, each Component of such Class).
<PAGE>
(f) Except as otherwise provided in Section 3.17(a) and subsections
(i) and (j) below, the REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to each of REMIC I, REMIC II and REMIC III (but not including any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to the Trust Fund that involve the Internal
Revenue Service or state tax authorities which extraordinary expenses shall be
payable or reimbursable to the REMIC Administrator from the Trust Fund unless
otherwise provided in Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of REMIC I, REMIC II and REMIC III. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a timely basis
to the REMIC Administrator or its designee such information with respect to each
of REMIC I, REMIC II and REMIC III as is in its possession and reasonably
requested by the REMIC Administrator to enable it to perform its obligations
under this Section 10.01. Without limiting the generality of the foregoing, the
Depositor, within ten days following the REMIC Administrator's request therefor,
shall provide in writing to the REMIC Administrator such information as is
reasonably requested by the REMIC Administrator for tax purposes, as to the
valuations and issue prices of the Certificates, and the REMIC Administrator's
duty to perform its reporting and other tax compliance obligations under this
Section 10.01 shall be subject to the condition that it receives from the
Depositor such information possessed by the Depositor that is necessary to
permit the REMIC Administrator to perform such obligations.
(h) The REMIC Administrator shall perform on behalf of each of REMIC
I, REMIC II and REMIC III all reporting and other tax compliance duties that are
the responsibility of each such REMIC under the Code, the REMIC Provisions or
other compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Included among such duties, the REMIC Administrator
shall provide to: (i) any Transferor of a Residual Interest Certificate, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Interest Certificate to any Person who is not a Permitted
Transferee; (ii) the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including, without limitation,
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption as required hereunder); and (iii) the
Internal Revenue Service, the name, title, address and telephone number of the
Person who will serve as the representative of each of REMIC I, REMIC II and
REMIC III.
(i) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of REMIC I, REMIC II and REMIC III as a REMIC
under the
<PAGE>
REMIC Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee's, the
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, the Master Servicer, the Special Servicer, or the Trustee
shall knowingly take (or cause any of REMIC I, REMIC II or REMIC III to take)
any action or fail to take (or fail to cause to be taken) any action that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of any of REMIC I, REMIC II or REMIC III as a REMIC, or (ii)
except as provided in Section 3.17(a), result in the imposition of a tax upon
any of REMIC I, REMIC II or REMIC III (including, but not limited to, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) or the
result in the imposition of a tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code (any such endangerment of REMIC status
or, except as provided in Section 3.17(a), imposition of a tax, an "Adverse
REMIC Event"), unless the REMIC Administrator has obtained or received an
Opinion of Counsel (at the expense of the party requesting such action or at the
expense of the Trust Fund if the REMIC Administrator seeks to take such action
or to refrain from acting for the benefit of the Certificateholders) to the
effect that the contemplated action will not result in an Adverse REMIC Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the REMIC Administrator
has advised it in writing that the REMIC Administrator has received or obtained
an Opinion of Counsel to the effect that an Adverse REMIC Event could result
from such action or failure to act. In addition, prior to taking any action with
respect to REMIC I, REMIC II or REMIC III, or causing any of REMIC I, REMIC II
or REMIC III to take any action, that is not expressly permitted under the terms
of this Agreement, the Master Servicer and the Special Servicer shall consult
with the REMIC Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur. The REMIC
Administrator may consult with counsel to make such written advice, and the cost
of same shall be borne by the party seeking to take the action not permitted by
this Agreement, but in no event at the cost or expense of the Trust Fund or the
Trustee. At all times as may be required by the Code, the REMIC Administrator
shall make reasonable efforts to ensure that substantially all of the assets of
REMIC I, REMIC II and REMIC III will consist of "qualified mortgages" as defined
in Section 860G(a)(3) of the Code and "permitted investments" as defined in
Section 860G(a)(5) of the Code.
(j) If any tax is imposed on any of REMIC I, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of State or Local Tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be
<PAGE>
charged to and paid by: (i) the REMIC Administrator, if such tax arises out of
or results from a breach by the REMIC Administrator of any of its obligations
under this Section 10.01; (ii) the Special Servicer, if such tax arises out of
or results from a breach by the Special Servicer of any of its obligations under
Article III or this Section 10.01; (iii) the Master Servicer, if such tax arises
out of or results from a breach by the Master Servicer of any of its obligations
under Article III or this Section 10.01; (iv) the Trustee, if such tax arises
out of or results from a breach by the Trustee of any of its obligations under
Article IV, Article VIII or this Section 10.01; (v) the Depositor, if such tax
was imposed due to the fact that any of the Mortgage Loans did not, at the time
of their transfer to the REMIC I, constitute a "qualified mortgage" as defined
in Section 860G(a)(3) of the Code; or (vi) the Trust Fund, excluding the portion
thereof constituting the Grantor Trust, in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust Fund. Any such amounts payable by the
Trust Fund shall be paid by the Trustee upon the written direction of the REMIC
Administrator out of amounts on deposit in the Collection Account in reduction
of the Available Distribution Amount pursuant to Section 3.05(b).
(k) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I, REMIC II and REMIC
III on a calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
REMIC I, REMIC II or REMIC III unless it shall have received an Opinion of
Counsel (at the expense of the party seeking to cause such contribution and in
no event at the expense of the Trust Fund or the Trustee) to the effect that the
inclusion of such assets in such REMIC will not cause: (i) such REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or reasonably foreseeable material default of
a Mortgage Loan, including, but not limited to, the sale or other disposition of
a Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of REMIC I, REMIC II or REMIC III, (C) the termination of REMIC I, REMIC II and
REMIC III pursuant to Article IX of this Agreement, or (D) a purchase of
Mortgage Loans pursuant to or as contemplated by Article II or III of this
Agreement); (ii) the sale or disposition of any investments in the Custodial
Account, the Collection Account, the Interest Reserve Account or the REO Account
for gain; or (iii) the acquisition of any assets for REMIC I, REMIC II or REMIC
III (other than a Mortgaged Property acquired through foreclosure, deed in lieu
of foreclosure or otherwise in respect of a defaulted Mortgage Loan and other
than Permitted Investments acquired in connection with the investment of funds
in
<PAGE>
the Custodial Account, the Collection Account, the Interest Reserve Account or
the REO Account); in any event unless it has received an Opinion of Counsel (at
the expense of the party seeking to cause such sale, disposition, or acquisition
but in no event at the expense of the Trust Fund or the Trustee) to the effect
that such sale, disposition, or acquisition will not cause: (x) REMIC I, REMIC
II or REMIC III to fail to qualify as a REMIC at any time that any Certificates
are outstanding; or (y) the imposition of any tax on REMIC I, REMIC II or REMIC
III under the REMIC Provisions or other applicable provisions of federal, state
and local law or ordinances.
(n) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which REMIC I, REMIC II or REMIC III will receive a fee or other compensation
for services nor permit REMIC I, REMIC II or REMIC III to receive any income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
SECTION 10.02. Grantor Trust Administration.
(a) The REMIC Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and, if
necessary, under applicable state law and will file appropriate federal or state
Tax Returns for each taxable year ending on or after the last day of the
calendar year in which the Certificates are issued.
(b) The REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to the Grantor Trust (but not including any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect to
the Trust Fund that involve the Internal Revenue Service or state tax
authorities which extraordinary expenses shall be payable or reimbursable to the
REMIC Administrator from the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The REMIC Administrator shall prepare, sign and file all of the
Tax Returns in respect of the Grantor Trust. The expenses of preparing and
filing such returns shall be borne by the REMIC Administrator without any right
of reimbursement therefor. The other parties hereto shall provide on a timely
basis to the REMIC Administrator or its designee such information with respect
to the Grantor Trust as is in its possession and reasonably requested by the
REMIC Administrator to enable it to perform its obligations under this Section
10.02. Without limiting the generality of the foregoing, the Depositor, within
ten days following the REMIC Administrator's request therefor, shall provide in
writing to the REMIC Administrator such information as is reasonably requested
by the REMIC Administrator for tax purposes, and the REMIC Administrator's duty
to perform its reporting and other tax compliance obligations under this Section
10.02 shall be subject to the condition that it receives from the Depositor such
information possessed by the Depositor that is necessary to
<PAGE>
permit the REMIC Administrator to perform such obligations.
(d) The REMIC Administrator shall perform on behalf of the Grantor
Trust all reporting and other tax compliance duties that are required in respect
thereof under the Code, the Grantor Trust Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority.
(e) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee's, the
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause the Grantor Trust to take) any action or fail to take
(or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Grantor Trust as a grantor trust under the Grantor Trust Provisions or
result in the imposition of a tax upon the Grantor Trust or its assets or
transactions (any such endangerment or imposition, an "Adverse Grantor Trust
Event"), unless the REMIC Administrator has obtained or received an Opinion of
Counsel (at the expense of the party requesting such action or at the expense of
the Trust Fund if the REMIC Administrator seeks to take such action or to
refrain from taking any action for the benefit of the Certificateholders) to the
effect that the contemplated action will not result in an Adverse Grantor Trust
Event. None of the other parties hereto shall take any action or fail to take
any action (whether or not authorized hereunder) as to which the REMIC
Administrator has advised it in writing that the REMIC Administrator has
received or obtained an Opinion of Counsel to the effect that an Adverse Grantor
Trust Event could result from such action or failure to act. In addition, prior
to taking any action with respect to the Grantor Trust, or causing the Trust
Fund to take any action, that is not expressly permitted under the terms of this
Agreement, the Master Servicer and the Special Servicer shall consult with the
REMIC Administrator or its designee, in writing, with respect to whether such
action could cause an Adverse Grantor Trust Event to occur. The REMIC
Administrator may consult with counsel to make such written advice, and the cost
of same shall be borne by the party seeking to take the action not permitted by
this Agreement, but in no event at the cost or expense of the Trust Fund, the
REMIC Administrator or the Trustee.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including, without limitation, penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Section 10.02; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.02; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.02; (iv) the Trustee, if
<PAGE>
such tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Section 10.02; or (v) the
portion of the Trust Fund constituting the Grantor Trust in all other instances.
(g) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to the Grantor Trust on a calendar year
and on an accrual basis.
<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the provisions
hereof, (iv) to relax or eliminate any requirement hereunder imposed by the
REMIC Provisions if the REMIC Provisions are amended or clarified such that any
such requirement may be relaxed or eliminated, (v) as evidenced by an Opinion of
Counsel delivered to the Master Servicer, the Special Servicer and the Trustee,
either (A) to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to any of the REMICs or the Grantor Trust
at least from the effective date of such amendment, or (B) to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of any
such REMIC or the Grantor Trust; or (vi) as provided in Section 5.02(d)(iv), to
modify, add to or eliminate any of the provisions of Section 5.02(d)(i), (ii) or
(iii); provided that such amendment (other than any amendment for any of the
specific purposes described in clauses (v) and (vi) above) shall not adversely
affect in any material respect the interests of any Certificateholder, as
evidenced by either an Opinion of Counsel to such effect or, in the case of a
Class of Certificates to which a rating has been assigned by one or more Rating
Agencies, written confirmation from each applicable Rating Agency to the effect
that such amendment shall not result in a qualification (in the case of ratings
assigned by Moody's), downgrade or withdrawal of any rating then assigned by it
to such Class of Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 662/3% of the Voting Rights allocated to each of the
affected Classes for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i)
without the consent of the Holders of all Certificates
<PAGE>
of such Class, (iii) modify the provisions of this Section 11.01 without the
consent of the Holders of all Certificates then outstanding, (iv) modify the
provisions of Section 3.20 or the Servicing Standard without the consent of the
Holders of all Regular Interest Certificates then outstanding or (v) modify the
specified percentage of Voting Rights which are required to be held by
Certificateholders to consent or not to object to any particular action pursuant
to any provision of this Agreement without the consent of the Holders of all
Certificates then outstanding. In addition, this Agreement may be amended from
time to time by the agreement of the parties hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates, provided that (i) each Rating Agency has confirmed in writing that
such amendment will not result in a qualification (in the case of ratings
assigned by Moody's), downgrade or withdrawal of any of the ratings then
assigned by such Rating Agency to the Certificates, (ii) 100% of the holders of
each Class of non-rated Certificates, if any, that is materially and adversely
affected by such amendment have consented thereto and (iii) the Underwriter has
consented to such amendment. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01(b), Certificates registered in the name of any party hereto
or any Affiliate thereof shall be entitled to the same Voting Rights with
respect to matters described above as they would if any other Person held such
Certificates, so long as the subject amendment does not relate to increasing its
rights or reducing or limiting its obligations hereunder as a party to this
Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) to the effect that (i) such amendment or
the exercise of any power granted to the Trustee, the Master Servicer or the
Special Servicer in accordance with such amendment will not result in the
imposition of a tax on any of REMIC I, REMIC II or REMIC III pursuant to the
REMIC Provisions, cause any of REMIC I, REMIC II or REMIC III to fail to qualify
as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust
within the meaning of the Grantor Trust Provisions at any time that any
Certificates are outstanding and (ii) such amendment complies with the
provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send a copy thereof to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may
<PAGE>
but shall not be obligated to enter into any amendment pursuant to this section
that affects its rights, duties and immunities under this Agreement or
otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Custodial Account or the Collection Account
pursuant to Section 3.05(a).
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Custodial Account pursuant to Section 3.05(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the
<PAGE>
parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said state, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be
in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given when delivered to: (i) in the case of the Depositor,
Structured Asset Securities Corporation, 200 Vesey Street, New York, New York
10285, Attention: LB Commercial Mortgage Trust 1999-C1, Series 1999-C1,
facsimile number: 212-526-3746; (ii) in the case of the Master Servicer,
First Union National Bank, First Union Capital Markets, NC 1075, 8739
Research Drive, URP-4, Charlotte, North Carolina 28288-1075, Attention: LB
Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, facsimile number: (704) 593-7735; (iii) in the
case of the Special Servicer, GMAC Commercial Mortgage Corporation, 650
Dresher Road, Horsham, Pennsylvania 19044-8015, Attention:
<PAGE>
LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, facsimile number: 215-328-3478, with a copy to
General Counsel, 215-328-3620; (iv) in the case of the Trustee, Norwest Bank
Minnesota, National Association, 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562, Attention: LB Commercial Mortgage Trust 1999-C1,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, facsimile
number: (410) 884-2372; (v) in the case of the Underwriters, (A) Lehman
Brothers, Inc., Three World Financial Center, New York, New York 10285,
Attention: Tricia Hall/Commercial Mortgage Trading, facsimile number:
212-526-3746, and (B) Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Attention: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, facsimile number: 212- 449-7684;
and (vi) in the case of the Rating Agencies, (A) Duff & Phelps Credit Rating
Co., 55 East Monroe Street, Chicago, Illinois 60603, Attention: CMBS
Monitoring, facsimile number: (312) 263- 2852; and (B) Moody's Investors
Service, Inc., 99 Church Street, New York, New York, Attention:
CMBS-Monitoring, facsimile number (212) 553-1350; or as to each such Person
such other address as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown
in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) in order to secure performance of the Depositor's
obligations hereunder and payment of the Certificates, the Depositor shall be
deemed to have granted, and does hereby grant, to the Trustee (in such capacity)
a first priority security interest in the Depositor's entire right, title and
interest in and to the assets constituting the Trust Fund, including, without
limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and any Principal Prepayments
received on or prior to the Cut-off Date), all amounts held from time to time in
the Custodial Account,
<PAGE>
the Collection Account, the Interest Reserve Account and, if established, the
REO Account and the Defeasance Deposit Account and any and all reinvestment
earnings on such amounts, and all of the Depositor's right, title and interest
in and to the proceeds of any title, hazard or other Insurance Policies related
to such Mortgage Loans, and (ii) this Agreement shall constitute a security
agreement under applicable law. The Depositor shall file or cause to be filed,
as a precautionary filing, a Form UCC-1 substantially in the form attached as
Exhibit J hereto in all appropriate locations in the State of New York promptly
following the initial issuance of the Certificates, and the Trustee shall
prepare, execute and file at each such office, with the reasonable cooperation
of the Depositor, continuation statements with respect thereto, in each case
within six months prior to the fifth anniversary of the immediately preceding
filing. The Depositor shall cooperate in a reasonable manner with the Trustee
and the Master Servicer in preparing and filing such continuation statements.
This Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the New York UCC.
SECTION 11.08. Streit Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
SECTION 11.09. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. The
Underwriters shall be third party beneficiaries to this Agreement solely with
respect to their rights to receive the reports, statements and other information
to which they are entitled hereunder, to preserve Lehman Brothers' rights under
Sub-Servicing Agreements as contemplated by Section 3.22(d) and to terminate the
Trust Fund pursuant to Section 9.01. Each of the Sub-Servicers that is a party
to a Sub-Servicing Agreement in effect on the Closing Date (or being negotiated
as of the Closing Date and in effect within 60 days thereafter) shall be a third
party beneficiary to obligations of a successor Master Servicer under Section
3.22(d), provided that the sole remedy for any claim by a Sub-Servicer as a
third party beneficiary pursuant to this Section 11.09 shall be
<PAGE>
against a successor Master Servicer solely in its corporate capacity and no
Sub-Servicer shall have any rights or claims against the Trust Fund or any party
hereto (other than a successor Master Servicer in its corporate capacity as set
forth in this Section 11.09) as a result of any rights conferred on such
Sub-Servicer as a third party beneficiary pursuant to this Section 11.09. This
Agreement may not be amended in any manner that would adversely affect the
rights of any such third party beneficiary without its consent. No other person,
including, without limitation, any Mortgagor, shall be entitled to any benefit
or equitable right, remedy or claim under this Agreement.
SECTION 11.10. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Master Servicer or the
Special Servicer;
(iv) the repurchase of Mortgage Loans by the Depositor pursuant to
Section 2.03;
(v) any change in the location of the Collection Account or the
Interest Reserve Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Custodial Account.
<PAGE>
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Mortgage Loan such information as the Rating
Agency shall reasonably request and which the Special Servicer can reasonably
provide in accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14; and
(iii) any Officers' Certificate delivered by it to the Trustee
pursuant to Section 3.03(e) or 4.03(c).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy
of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
SECTION 11.12. Global Opinions.
Notwithstanding anything herein to the contrary, where any party
hereto is required or permitted to rely upon an Opinion of Counsel with respect
to any particular matter, such Opinion of Counsel need not specifically
reference such particular matter, but rather such Opinion of Counsel may address
general matters of law in respect of nonspecific circumstances which clearly
encompass the facts of such particular matter (any such Opinion of Counsel, a
"Global Opinion"); provided that no Global Opinion may be relied upon if it is
more than 12 months old or if the subject party has reason to believe that such
Global Opinion no longer expresses a correct legal opinion.
SECTION 11.13. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of
<PAGE>
Section 11.01. All prior negotiations or representations of the parties are
merged into this Agreement and shall have no force or effect unless expressly
stated herein.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION
Depositor
By: ___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
Master Servicer
By: ___________________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE
CORPORATION
Special Servicer
By: ___________________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
Trustee
By: ___________________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of ____________________, before me, a notary
public in and for said State, personally appeared ________________, known to me
to be a _____________________ of STRUCTURED ASSET SECURITIES CORPORATION, one of
the entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of ____________________, before me, a notary
public in and for said State, personally appeared ________________ known to me
to be a ___________ of FIRST UNION NATIONAL BANK, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of ______________________, before me, a notary
public in and for said State, personally appeared ___________________________,
known to me to be a ___________ of GMAC COMMERCIAL MORTGAGE CORPORATION, one of
the entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of _____________________, before me, a notary
public in and for said State, personally appeared _____________________, known
to me to be a _____________________ of NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, one of the entities that executed the within instrument, and also
known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<PAGE>
LB Commercial Mortgage Trust Series 1999-C1
Schedule No. 1
Control
Number Property Name
==============================================
1 Starwood Financial
2 EAB Plaza
3 Woodland Hills Mall
4 Penn Square Mall
5 Grand Central Mall
6 Crossroads Mall
7 Natomas Corporate Center
8 Carmel Plaza
9 Boston Design Center
10 Corporetum Office Campus
11 Tropicana Centre
12 Hickory Point Mall
13 Pacific Park Plaza
14 Arden
15 Westland Promenade
16 Forest Plaza
17 Wal-Mart
18 Trujillo Alto Shopping Center
19 Casa Del Monte
20 Grand Traverse Crossing
21 607 South Hill Street
22 Denton Center Shopping Center
23 Pleasure Cove and Plantation Manor
24 175 Pinelawn Road
25 Westheimer Park/ Terrace Apartments
26 Toll House Hotel
27 San Felipe Court Apartments
28 Tides/Kent Hotel Package
29 Hickory Hills- MHP
30 Indian Springs Apartments
31 Cypress Parke Apartments
32 Conyers Plaza
33 Best Western Rochester
34 Sierra Vista Apartments
35 Woodholme Center Office Building
36 Holiday Inn Express - Birmingham
37 Steger Towne Crossing I
38 Birnam Wood Apartments
39 Glasshouse Square Shopping Center
<PAGE>
40 Twinsburg Town Center
41 Post Oak Apartments
42 Tierra Verde Plaza
43 LBJ Oates/Summit Shopping Center
44 Normandy Square Apartments
45 Carrier Town Crossing
46 Camelot Arms Apartments
47 Gaitherstowne Plaza
48 Eastgate Plaza Shopping Center
49 Canfield Business Park
50 Hampton Woods Apartments
51 Kohl's Shopping Center
52 Industrial Bldg 1-24
53 Hancock Plaza
54 Washington Place Shopping Center
55 9797 S. Frontage Rd.
56 Courtyard Plaza Shopping Center
57 Owens - Crenshaw
58 Best Western Truckee
59 Owens-Tracy
60 SecureCare Portfolio
61 Fidelity Office Building
62 Village at Loch Katrine Apartments
63 Terra Vista Business Park
64 The Hills Apartments
65 Bed Bath & Beyond/ Babies 'R Us
66 Vineyard Apartments
67 Atelier District Office
68 Equitable Federal Building
69 Kmart - San Diego
70 Bed, Bath & Beyond
71 Owens-Volney
72 Ridgegate Apartments
73 Depot Plaza
74 Hampton Inn - Virginia Beach
75 Sportmart Plaza
76 University Plaza Shopping Center
77 Lincoln Way East Shopping Center
78 600 Blair Road
79 Madison Woods Apartments
80 French Mountain Commons Outlet Center
81 Anacota Plaza
82 357-363 West Erie
83 Orange Tree Plaza
84 San Marin Shopping Center
85 Magnolia Station Apartments
86 Piqua Plaza Shopping Center
87 Sagetree Village
88 Beverly Center
<PAGE>
89 Walgreen - Riverview
90 Parker Street Industrial
91 Winn Dixie
92 Hampton Inn - Chesapeake
93 Branford Commerce Center
94 Office Depot Building
95 Glendale Shopping Center
96 Five Points Plaza
97 Eckerd - Baton Rouge
98 Cascade Park Apartments
99 Kmart - Cincinnati
100 Blue Garden Apartments
101 Regency Square
102 Executive Quarters Office Building
103 Eckerd - Arlington
104 Eckerd - Shreveport
105 Washington Shores Plaza
106 Market Place Shopping Center
107 Wal-Mart Plaza
108 Bullfrog Shopping Center
109 Royal Orleans Apartments
110 Pondview Plaza
111 Eckerd - Waxahachie
112 1200 Route 9
113 Delchamps Plaza
114 Steger Towne Crossing II
115 Liberty Plaza Mall
116 Spalding Centre Shopping Center
117 Autumnwood
118 Camelot Manufactured Housing Community
119 Marshall Mall
120 Metro Center
121 Owens - Midway
122 URS Building
123 Brendonwood Park Apartments
124 Town and Country Shopping Center
125 Woodlake Professional Building
126 Castleton Shoppes Shopping Center
127 Corn Exchange Building
128 Rite Aid - Waterford
129 Mountain Springs Mobile Home Estates
130 Forest Grove
131 Park Forest Shopping Center
132 Hampton Hills Apartments
133 Wynforest Apartments
134 855 Plaza
135 Thorndale Business Park
136 Mini Masters Storage Facility
137 Kmart Plaza - Bellflower
<PAGE>
138 Eckerd - Rotterdam
139 Owens - Lakeland
140 Greengate East Shopping Center
141 Greenwich Court
142 849 Delaware Avenue
143 Willow Wood Apartments
144 Walgreens - South Elgin
145 Center Hill Business Park
146 Yarbrough Office Park
147 Riverview Commons MHC
148 Office Max - Grand Forks
149 Trinity Business Plaza
150 5575 E. Winnemucca Blvd.
151 Adirondack Industrial Park
152 180 West Washington
153 Santiago Creek MHP
154 Burke Commons Center
155 Countryside Estates Manufactured Home Park
156 CVS - Statesville
157 Office Max - Minot
158 CVS - Mooresville
159 Riverdale Commons
160 Quail Valley Shopping Center
161 Southern Pavilion Mini Storage
162 Hampton Place Shopping Center
163 CVS - Port Royal
164 Commons at Kings Crossing
165 Primrose Business Complex
166 Southlake Shopping Center
167 Sylmar Mobile Home Park
168 Central Self Storage - Vallejo
169 Washington Plaza Shopping Center
170 Michigan MHP Portfolio
171 CVS - Greensboro
172 Bayshore Plaza
173 CVS - Newton
174 CVS - Bessemer City
175 Rite Aid - Sterling Heights
176 Twin Lakes Mobile Home Estates
177 Northbrook Estates
178 Northwood Village
179 Lexington Place Apartments
180 4545 Groves Road Industrial Building
181 10775 Applewood Drive & 3825 S. Huron Street
182 Lincoln Park Mobile Home Village
183 Burke Self Storage
184 Meadows Shopping Center
185 Hunter's Mill Shoppes
186 Ashford Shopping Center
<PAGE>
187 Victorville Shopping Center
188 Sun Plaza
189 Mulberry Atrium
190 Ames Plaza
191 Amoco
192 Shangrai-La
193 275 North Saguaro Drive
194 Aspen Office Building
195 Angleton Mobile Home Park
<PAGE>
Address
================================================================================
Various
Glenn Curtis Blvd & Hempstead Turnpike
7021 S. Memorial Drive
1901 Northwest Expressway
100 Grand Central Mall
6650 South Westnedge Avenue
1740, 1750, 1760 Creekside Oaks Drive and 2485, 2495, 2525 Natomas Park Drive
Ocean Avenue at Mission Street
One Design Center Place
550, 650, 850, 950, 1050 Warrenville Road
3055, 3335, 3365 E. Tropicana Avenue
NWC of I-72 & US 51
711 Kapiolani Boulevard
Various
3890 West 18th Avenue
2040-2060 Forest Avenue
Various
Trujillo Alto Plaza Kilometer 3.4
6151 Forest Hill Boulevard
Airport Road at Day Drive
607 South Hill Street
500-1042 West University Drive
3030 and 3200 S. US Highway 1
175 Pinelawn Road
9235/9407 Westheimer Road
140 S. Santa Cruz Avenue
2007 Mid Lane Road
1220 Ocean Drive & 1131 Collins Avenue
121 Hickory Hills Drive
2662 Trader Court
990 Cypress Station
1370-1426 Dogwood Drive
214 Fourth Street, SW & 401 6th Street, SW
615 South Hardy Drive
1829 Reistertown Road
34952 Woodward Avenue
I-30 and Ridge Road
2505 King Lear Drive
3104, 3146 Sports Arena Boulevard
<PAGE>
8922-72 Darrow Road / S.R. 91
705 Ridgecrest Court
Northwest Corner of Deer Valley Road & 67th Avenue
1900 Oates Drive
5095 Bennington Drive
NWC of I-20 and Carrier Parkway
855 King Arthur Drive
206-300 North Frederick Road
1725 West Carson Street
111-117 Canfield Avenue
3001 Oak Tree Avenue
11530-11560 Kingston Pike
SW/c of Sam Ridley Parkway and I-24
1513-1537 Hancock Street
10105-19121 & 10203-10263 E. Washington Street
9797 S. Frontage Rd.
101-185 Interstate 35
State Route 219
11331 Brockway Road
15000 West Schulte Road
Various
2300 Litton Lane
16545 Loch Katrine Lane
10707 Town Center Drive, 14120 Live Oak Avenue
3101 W. Normandale
4901 28th Street SE
1625 Richland Avenue
240, 262, 278 N. 5th Street, 225, 251 N. Neilston Street
11501 Georgia Avenue & 2413 Blueridge Avenue
5405 University Avenue
12220 Jefferson Avenue
Great Bear Road
9737 Forest Lane
999 East Ridge Road
5793 Greenwich Road
3201 East Lincoln Highway
2400 North University Drive
1660-1710 US Route 30 East
600 Blair Road
3939 Madison Avenue
1439 State Route 9
602 Anacapa Street
357-363 West Erie Street
23532 El Toro Road
101-270 San Marin Drive
1607 Lyte Street
1923-1947 Covington Road
3524 East Avenue R
8181 South 48th Street
<PAGE>
17071 Fort Street
918 Parker Street
2126 Collier Parkway
701A Woodlake Drive
30-36 East Industrial Road
1090 W Hampden Avenue
SW Corner of Glendale and 43rd Avenues
1030-1060 152nd Street
SWC Government Street & Acadian Thruway
4232, 4242, 4252, 4th St. S.E. & 4281 and 4291 6th St. S.E.
5500 Ridge Road
330 Hubbard Court
101 Rohrerstown Road
2790 Skypark Drive
831 E. Park Row
6935 Pines Road
2108-2200 Bruton Blvd.
2225-2625 West New Haven Avenue
4224 N. Prospect Street
US Highway 51 @ Goodman Rd
1540 Chenault Street
100-300 Overlook Drive
701 Ferris Avenue
1200 Route 9
2025 East Madison Avenue
2845 Ridge Road
State Route 52 East
6315 Spalding Drive
1802 Chartwell Drive
1935 Lor Ray Drive
1300 Pinecrest Drive East
3333 Brea Canyon Road
9698 Old US 52
33 North High Street
1004 Fayette Drive
1100 North Carbon Street
3900 Woodlake Boulevard
6024-6066 East 82nd Street
123-129 Chestnut Street
4390 Dixie Highway
3800 W. Wilson Avenue
6747 West Par Lane
9702-9712 Greenwell Springs Road
715 Washington Drive
1794 James Ray Drive
855 South Federal Highway
1230-1300 Mark Street
6900 West Craig Road
10400-10460 Rosencrans Avenue
<PAGE>
1409 Altamont Avenue
2222 West Bella Vista Street
Route 30 West
275-295 Greenwich Avenue
849 Delaware Avenue
3215 Baird Avenue North
1201 Spring Street
5836 & 5845 Highland Ridge Drive
SWC Old Bridge & Occoquan Roads
RD 2, Box 170-150
3225 30th Avenue South
2025 Irving Boulevard
5575 E. Winnemucca Blvd.
527-559 Queensbury Avenue and 80 Industrial Park Road
180 West Washington Street
3000 S. Chester Avenue
9409-9413 Old Burke Lake Road
569 E. 10th Street
215 North Center Street
825 20th Avenue SW
247 North Main Street
3516-3548 Main Street
2600 Cartwright Rd.
7110 E. Southern Avenue
460 Gilmer Avenue
Ribaut Road and Waddell Road
2710 West Lake Houston Parkway
911 South Primrose Avenue
2301 East Southlake Boulevard
12365 County Road 2
1080 Magazine Street
900 West National Road
Various
309 East Cornwallis Street
6351 Bayshore Road
US Hwy 321 at Radio Station Road
902 Gastonia Hwy
13500 19 Mile Road
3304 Shasta Dam Boulevard
774 135th Avenue
6250 NW 23rd Street
1130 Felder Street
4545 Groves Road
10775 Applewood Drive, 3825 South Huron Road
3075 Dix Highway
1009 Burke Road
234 & 250 South Clayton Street
5444 Virginia Beach Boulevard
12500 Briar Forest Drive
<PAGE>
12555 Mariposa Road
2074-2130 North University
2133-41 Arch Street
670 Bath Road
NW 87th Avenue and 17th Street
Blue Star Hwy. at 62nd Avenue
275 North Saguaro Drive
3075 West Oakland Park Boulevard
2645 Shanks Road
<PAGE>
<TABLE>
<CAPTION>
Cut-off Monthly P&I
City State Zip Code Date Balance Payment Rate
======================================================================================================
<S> <C> <C> <C> <C> <C>
Various Various Various 154,954,659.20 1,201,183.00 7.43800
Uniondale NY 11553 139,367,161.90 1,017,731.42 7.33000
Tulsa OK 74133 89,644,243.67 598,772.00 7.00000
Oklahoma City OK 73118 74,844,821.65 500,237.00 7.02500
Parkersburg WV 26101 52,332,103.01 355,652.00 7.18000
Portage MI 49024 45,000,000.00 311,571.00 7.40000
Sacramento CA 95833 37,874,599.30 253,326.00 7.02000
Carmel CA 93923 28,984,263.06 201,780.00 7.45000
Boston MA 02210 28,957,613.35 212,016.81 7.77000
Lisle IL 60532 25,914,200.79 173,328.00 7.02000
Paradise NV 89120 25,208,339.22 182,642.06 7.85000
Forsyth IL 62535 24,478,946.23 186,666.96 7.85000
Honolulu HI 96813 23,261,110.79 167,891.15 7.81000
Various CA Various 22,525,000.00 158,115.49 7.54000
Hialeah FL 33012 21,489,417.41 153,880.09 7.74000
Staten Island NY 10303 19,240,492.09 137,643.40 7.73000
Various Various Various 17,677,473.30 123,781.70 7.43000
Trujillo Alto PR 00760 15,833,271.86 110,088.39 7.40000
West Palm Beach FL 33401 15,741,508.96 109,802.92 7.47000
Garfield MI 49684 14,544,277.94 102,278.27 7.42000
Los Angeles CA 90014 13,379,960.02 102,164.37 8.12000
Denton TX 76201 13,034,012.20 97,670.20 8.06000
Fort Pierce FL 34982 12,968,214.36 87,977.24 7.12000
Melville NY 11747 12,060,458.93 81,071.25 7.07000
Houston TX 77063 11,385,399.46 79,710.45 7.50000
Los Gatos CA 95030 11,181,854.53 92,156.19 8.76000
Houston TX 77207 11,130,675.82 79,071.20 7.65000
Miami Beach FL 33139 10,592,291.46 85,568.48 8.53000
Bath PA 18014 10,368,400.63 72,291.50 7.44000
South Bend IN 46628 9,987,386.74 70,332.76 7.56000
Houston TX 77090 9,168,087.94 64,327.73 7.50000
Conyers GA 30012 8,995,179.81 62,867.69 7.49000
Rochester MN 55902 8,860,351.74 72,483.49 8.67000
Tempe AZ 85281 8,836,455.21 60,188.28 7.09000
Baltimore MD 21209 8,595,693.46 61,255.26 7.69000
Birmingham MI 48009 8,448,774.34 65,283.75 7.94300
Rockwall TX 75087 8,393,838.92 57,008.13 7.08000
Monroeville PA 15146 8,305,515.75 58,036.57 6.75000
San Diego CA 92110 8,168,291.01 58,745.80 7.75000
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Twinsburg OH 44087 8,038,123.57 53,342.21 6.88963
Norman OK 73072 7,989,754.00 55,937.16 7.50000
Glendale AZ 85310 7,917,344.00 56,759.92 7.62700
Mesquite TX 75150 7,897,942.41 59,943.17 8.20000
Saginaw MI 48603 7,890,363.08 56,269.37 7.69000
Grand Prairie TX 75052 7,865,212.78 56,607.79 7.75000
Fayetteville NC 28314 7,285,730.41 49,749.36 7.24000
Gaithersburg MD 20877 6,892,158.71 50,437.48 7.96000
Torrance CA 90501 6,874,220.38 53,667.49 8.62500
Randolph NJ 07869 6,871,441.66 48,056.95 7.46000
Norman OK 73072 6,691,418.98 46,847.37 7.50000
Farragut TN 37922 6,223,242.04 43,097.72 7.29610
Smyrna TN 37167 6,197,248.15 45,623.13 8.03000
Quincy MA 02169 6,188,707.43 43,351.33 7.50000
Indianapolis IN 46229 6,043,431.59 44,942.26 8.13000
Yuma AZ 85365 5,970,781.62 42,567.36 6.95000
New Braunfels TX 78130 5,939,635.91 42,257.08 7.66000
Crenshaw PA 15824 5,794,833.33 45,653.76 8.21000
Truckee CA 96161 5,790,407.36 47,330.19 8.66000
Tracy CA 95376 5,635,251.00 44,396.51 8.21000
Various Various Various 5,634,047.04 42,991.86 7.83500
Hebron KY 41048 5,619,231.10 37,589.60 7.00000
Houston TX 77084 5,457,828.17 37,740.28 7.30000
Rancho Cucamonga, Baldwin Park CA 91730 5,177,160.76 37,974.66 7.95000
Fort Worth TX 76116 5,084,744.20 36,658.35 7.66930
Cascade MI 49512 5,000,042.53 33,543.52 7.05000
Ceres CA 95307 4,993,628.72 35,029.23 7.52000
Columbus OH 43215 4,985,017.05 34,994.97 7.51000
Wheaton VA 20902 4,969,444.06 33,231.55 6.99000
San Diego CA 92105 4,875,875.68 28,848.93 7.10000
Newport News VA 23602 4,809,592.89 35,349.40 7.36000
Volney NY 13069 4,697,704.81 37,010.19 8.21000
Dallas TX 75243 4,594,793.31 33,673.04 7.97500
Irondequoit NY 14609 4,592,166.99 32,923.18 7.74000
Virginia Beach VA 23462 4,489,417.39 36,813.20 8.69000
Hobart IN 46410 4,423,043.19 32,592.56 8.04000
Sunrise FL 33322 4,394,986.43 32,132.41 7.95000
Chambersburg PA 17201 4,392,761.28 31,857.25 7.86000
Carteret NJ 07008 4,322,973.27 31,374.26 7.88000
Sacramento CA 95660 4,294,492.78 30,066.22 7.50000
Queensbury NY 12845 4,283,917.43 31,222.77 7.89000
Santa Barbara CA 93101 4,198,132.41 30,891.34 8.02500
Chicago IL 60610 4,188,471.03 30,671.84 7.95000
Lake Forest CA 92630 4,098,325.15 30,801.93 8.25000
Novato CA 94945 4,097,932.79 29,146.57 7.67000
Dallas TX 75201 3,998,118.89 28,988.89 7.87000
Piqua OH 45356 3,993,246.74 28,711.79 7.77000
Palmdale CA 93550 3,948,820.22 28,475.63 7.08000
Phoenix AZ 85044 3,923,503.51 26,468.49 7.06600
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Riverview MI 48192 3,918,244.75 28,096.04 6.53000
Berkeley CA 94710 3,860,637.48 26,675.27 6.64000
Land O' Lakes FL 34639 3,815,934.51 30,103.96 6.91000
Chesapeake VA 23320 3,791,063.58 31,086.70 8.69000
Branford CT 06405 3,769,126.96 25,485.99 7.08000
Englewood CO 80110 3,673,591.30 24,897.73 7.10180
Glendale AZ 85301 3,595,642.51 25,716.25 7.72000
Cleveland OH 44110 3,582,463.11 25,171.72 7.50000
Baton Rouge LA 70805 3,531,716.62 26,455.21 6.89000
Washington DC 20032 3,514,040.12 25,242.04 7.76000
Cincinnati OH 45213 3,500,000.00 20,708.33 7.10000
Westland MI 48186 3,374,782.76 21,962.01 6.71000
East Hempfield PA 17603 3,373,535.65 23,217.06 7.26000
Torrance CA 90505 3,182,835.44 21,756.87 7.20563
Arlington TX 76010 3,145,028.78 25,867.65 8.19000
Shreveport (Pines) LA 71129 3,110,478.27 22,430.55 6.73000
Orlando FL 32811 3,089,583.10 22,208.78 7.75000
Melbourne FL 32904 3,061,392.97 22,675.99 7.75000
Decatur IL 62526 2,998,622.82 22,676.76 8.24500
Horn Lake MS 38637 2,991,049.19 22,601.30 8.28000
Dallas TX 75228 2,990,675.45 20,618.12 7.32500
Monroe NJ 08512 2,938,033.70 22,098.05 8.17000
Waxahachie TX 75165 2,933,907.36 21,788.46 6.89000
Woodbridge NJ 07095 2,921,346.14 23,010.99 8.75000
Bastrop LA 71220 2,916,272.95 22,036.27 8.28000
Rockwall TX 75032 2,898,650.70 21,077.36 7.90000
Liberty NY 12754 2,839,005.25 20,437.45 7.76000
Norcross GA 30092 2,813,068.20 21,042.71 7.49000
Fort Wayne IN 46816 2,791,441.86 19,405.74 7.41000
North Mankato MN 56003 2,790,060.50 19,578.01 7.50000
Marshall TX 75670 2,742,912.57 21,719.14 8.27000
Diamond Bar CA 91765 2,686,149.08 18,455.40 7.27000
Midway NC 27292 2,653,056.22 20,901.72 8.21000
Columbus OH 43215 2,641,095.26 18,984.92 7.75000
Fort Wayne IN 46816 2,592,053.18 18,019.61 7.41000
Marion IL 62959 2,563,152.77 18,447.62 7.75000
Greenacres FL 33463 2,556,157.38 19,088.64 8.17000
Indianapolis IN 46250 2,497,358.79 18,746.53 8.23000
Philadelphia PA 19106 2,491,219.87 18,606.20 8.15000
Waterford Township MI 48329 2,475,182.32 19,240.28 6.88000
Banning CA 92220 2,468,012.64 17,797.27 7.08000
Wichita KS 67212 2,445,684.18 17,332.52 7.62000
Baton Rouge LA 70814 2,442,437.22 18,199.76 8.13000
Arlington TX 76011 2,440,803.73 17,764.20 7.87500
Marietta GA 30060 2,392,384.56 16,323.42 7.22000
Boca Raton FL 33431 2,391,305.90 18,880.81 8.75000
Bensenville IL 60106 2,387,814.22 15,248.64 6.55000
Las Vegas NV 89109 2,376,979.64 17,127.60 7.71000
Bellflower CA 90706 2,342,936.49 18,521.04 8.77000
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Rotterdam NY 12303 2,265,847.08 16,870.64 7.21000
Lakeland FL 33802 2,264,074.30 17,837.18 8.21000
Hempfield PA 15601 2,247,795.17 17,300.55 8.50000
New York NY 10007 2,245,760.29 17,380.77 8.01000
Buffalo NY 14209 2,197,392.04 15,837.15 7.80000
Lakeland FL 33805 2,191,752.01 15,959.16 7.88000
South Elgin IL 60177 2,188,988.76 15,202.35 7.38000
Cincinnati OH 45232 2,175,986.36 14,903.57 7.18000
Woodbridge VA 22192 2,095,465.54 13,774.46 6.86000
Richmond VT 05477 2,078,207.89 15,138.38 7.22000
Grand Forks ND 58201 2,051,133.32 14,108.76 7.29000
Dallas TX 75207 1,998,281.32 15,238.12 7.85000
Winnemucca NV 89445 1,995,699.83 16,900.49 9.08500
Queensbury/Kingsbury NY 12804 1,994,575.68 14,689.24 8.01000
Chicago IL 60606 1,991,665.55 15,608.96 8.13000
Bakersfield CA 93304 1,986,364.39 13,427.16 7.09000
Burke VA 22015 1,969,792.22 14,698.90 8.15000
Marysville OH 43040 1,912,124.21 14,050.75 7.36000
Statesville NC 28677 1,896,551.84 15,259.83 7.46000
Minot ND 58701 1,890,112.78 13,037.08 7.33000
Mooresville NC 28115 1,846,560.72 14,940.11 7.46000
Coon Rapids MN 55433 1,793,369.06 14,661.07 8.13000
Missouri City TX 77459 1,743,718.96 14,025.15 8.44500
Mesa AZ 85208 1,737,789.41 12,010.91 7.28000
Tallassee AL 36078 1,698,114.05 12,533.30 8.05000
Port Royal SC 29935 1,693,318.37 13,007.17 6.83000
Houston TX 77345 1,685,936.10 12,132.05 7.71000
Monrovia CA 91016 1,669,555.79 12,173.99 7.90000
Southlake TX 76092 1,617,137.69 11,395.64 7.53000
Brighton CO 80601 1,597,614.39 12,486.24 8.02000
Vallejo CA 94591 1,588,193.68 12,085.26 7.75000
Washington IN 47501 1,544,034.57 11,125.82 7.77000
Various MI Various 1,537,421.45 12,504.45 8.60000
Greensboro NC 27408 1,502,427.92 12,794.35 7.79000
Fort Meyers FL 33917 1,495,682.37 10,707.34 7.71250
Newton NC 28658 1,494,423.35 12,054.73 7.42000
Bessemer City NC 28016 1,494,259.09 11,674.55 7.05000
Sterling Heights MI 48313 1,452,137.46 11,631.11 6.75000
Shasta Lake CA 96019 1,370,772.37 9,501.47 7.38000
Wayland MI 49348 1,363,662.40 10,495.67 8.50000
Gainesville FL 32653 1,347,955.20 10,037.89 8.14000
Americus GA 31709 1,323,400.35 9,474.16 7.73000
Columbus OH 43232 1,294,669.17 9,089.79 7.50000
Sparta, Standish MI 49345, 48658 1,239,315.70 9,476.33 7.82000
Lincoln Park MI 48146 1,238,686.67 9,993.62 7.40000
Pasadena TX 77506 1,209,032.32 9,459.53 8.15000
Lawrenceville GA 30045 1,193,465.03 7,983.63 7.00000
Virginia Beach VA 23462 1,187,347.82 9,689.14 7.53000
Houston TX 77082 1,180,435.16 9,111.62 8.50000
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Victorville CA 92392 1,144,709.03 8,238.74 7.75000
Sunrise FL 33322 1,144,504.20 9,167.30 8.38000
Philadelphia PA 19103 1,093,616.78 8,599.57 8.15000
Wiscasset ME 04578 1,022,096.92 7,789.29 7.82000
Miami FL 33172 972,781.71 7,893.32 6.50000
Saugatuck MI 49453 849,131.26 6,445.62 8.35000
Apache Junction AZ 85220 848,517.80 6,787.24 8.40000
Overland Park FL 33310 847,799.94 6,701.83 8.25000
Angleton TX 77515 795,219.80 6,169.23 7.99000
----------------
1,580,066,326.93
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining Remaining
term to Matuirty/ Amortization Accrual Administrative Ground Mortgage Loan
Maturity ARD Term Basis Cost Rate Lease? Seller Defeasance
=======================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
118 4-1-2009 260 Act/360 0.102 No Lehman Brothers Yes
117 3-1-2009 297 Act/360 0.102 Yes Lehman Brothers Yes
115 1-1-2009 355 Act/360 0.102 No Lehman Brothers Yes
117 3-1-2009 357 Act/360 0.102 Yes Lehman Brothers Yes
116 2-1-2009 356 Act/360 0.102 No Lehman Brothers Yes
120 6-1-2009 360 Act/360 0.102 No Lehman Brothers Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
119 5-1-2009 359 Act/360 0.102 No Lehman Brothers Yes
118 4-1-2009 334 Act/360 0.102 Yes LUBS Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
81 3-1-2006 357 Act/360 0.102 No LUBS Yes
179 5-1-2014 299 Act/360 0.102 No Lehman Brothers Yes
117 3-1-2009 357 Act/360 0.102 Yes LUBS Yes
119 4-29-2009 360 Act/360 0.102 No Lehman Brothers Yes
119 5-1-2009 359 Act/360 0.102 No Lehman Brothers Yes
119 5-1-2009 359 Act/360 0.102 No Lehman Brothers Yes
168 6-11-2013 349 Act/360 0.127 No Lehman Brothers Yes
114 12-1-2008 354 Act/360 0.102 No LUBS Yes
59 5-1-2004 359 Act/360 0.102 No Lehman Brothers Yes
163 1-1-2013 271 30/360 0.102 No LUBS No
118 4-1-2009 322 Act/360 0.102 No LUBS Yes
98 8-1-2007 338 Act/360 0.102 No LUBS Yes
110 8-11-2008 350 Act/360 0.177 No Lehman Brothers Yes
116 2-1-2009 356 Act/360 0.152 No LUBS Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
82 4-1-2006 298 Act/360 0.102 No LUBS Yes
106 4-1-2008 358 Act/360 0.102 No LUBS Yes
119 5-1-2009 299 Act/360 0.102 No Lehman Brothers Yes
56 2-1-2004 356 Act/360 0.102 No LUBS Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
119 5-1-2009 359 Act/360 0.102 No Lehman Brothers Yes
118 4-1-2009 298 Act/360 0.152 No LUBS Yes
103 1-1-2008 343 30/360 0.152 No LUBS No
119 5-1-2009 359 Act/360 0.102 No LUBS Yes
97 7-11-2007 294 Act/360 0.177 No Lehman Brothers Yes
104 2-1-2008 343 Act/360 0.102 No Lehman Brothers Yes
111 9-1-2008 291 Act/360 0.102 No LUBS Yes
78 12-1-2005 354 Act/360 0.102 No LUBS Yes
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
110 8-1-2008 350 Act/360 0.102 No LUBS Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
103 1-1-2008 343 Act/360 0.152 No LUBS No
98 8-1-2007 338 Act/360 0.102 No LUBS Yes
118 4-1-2009 358 Act/360 0.102 No LUBS Yes
112 10-1-2008 353 Act/360 0.102 No LUBS Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
118 4-1-2009 358 Act/360 0.102 No LUBS Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
114 12-1-2008 354 Act/360 0.102 No LUBS Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
227 5-1-2018 347 Act/360 0.152 No LUBS Yes
119 5-1-2009 359 Act/360 0.102 No Lehman Brothers Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
118 4-1-2009 358 Act/360 0.122 No LUBS Yes
109 7-11-2008 289 Act/360 0.177 No Lehman Brothers Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
57 3-1-2004 297 Act/360 0.102 No LUBS Yes
82 4-1-2006 298 Act/360 0.102 No LUBS Yes
57 3-1-2004 297 Act/360 0.102 No LUBS Yes
57 3-1-2004 297 Act/360 0.152 No LUBS Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
109 7-1-2008 349 Act/360 0.102 No LUBS Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
65 11-1-2004 341 Act/360 0.102 No LUBS Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
112 10-1-2008 352 Act/360 0.102 No LUBS Yes
233 11-1-2018 180 30/360 0.062 No LUBS Yes
248 2-10-2020 295 30/360 0.062 No Lehman Brothers Yes
57 3-1-2004 297 Act/360 0.102 No LUBS Yes
118 4-1-2009 358 Act/360 0.152 No LUBS Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
117 3-1-2009 297 Act/360 0.102 No LUBS Yes
119 5-1-2009 359 Act/360 0.102 No Lehman Brothers Yes
118 4-1-2009 358 Act/360 0.122 No LUBS Yes
117 3-1-2009 357 Act/360 0.122 No LUBS Yes
59 5-1-2004 359 Act/360 0.102 No LUBS Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
54 12-1-2003 354 Act/360 0.102 No LUBS Yes
119 5-1-2009 359 Act/360 0.102 No LUBS Yes
80 2-1-2006 356 Act/360 0.102 No LUBS Yes
119 5-1-2009 359 Act/360 0.102 Yes Lehman Brothers Yes
119 5-1-2009 359 Act/360 0.102 No Lehman Brothers Yes
59 5-1-2004 359 Act/360 0.152 No Lehman Brothers Yes
81 3-1-2006 357 Act/360 0.102 No LUBS Yes
109 7-11-2008 289 Act/360 0.177 No Lehman Brothers Yes
111 9-1-2008 351 Act/360 0.152 No LUBS Yes
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
233 11-1-2018 263 30/360 0.062 No LUBS Yes
112 10-1-2008 292 Act/360 0.102 No LUBS Yes
229 7-1-2018 229 30/360 0.062 Yes Lehman Brothers Yes
117 3-1-2009 297 Act/360 0.102 No LUBS Yes
109 7-1-2008 349 Act/360 0.102 No LUBS Yes
50 8-1-2003 350 Act/360 0.152 No LUBS Yes
118 4-1-2009 358 Act/360 0.102 No LUBS Yes
77 11-1-2005 353 Act/360 0.102 No LUBS Yes
234 12-1-2018 255 30/360 0.062 No LUBS Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
233 11-1-2018 180 30/360 0.062 No LUBS Yes
111 9-11-2008 351 Act/360 0.177 No Lehman Brothers Yes
109 7-1-2008 349 Act/360 0.102 No LUBS Yes
112 10-1-2008 352 Act/360 0.102 Yes LUBS Yes
235 1-1-2019 260 30/360 0.062 No LUBS Yes
231 9-1-2018 269 30/360 0.062 No LUBS Yes
115 1-1-2009 355 Act/360 0.102 No LUBS Yes
115 1-1-2009 319 Act/360 0.102 No LUBS Yes
168 6-11-2013 349 Act/360 0.127 No Lehman Brothers Yes
115 1-1-2009 355 Act/360 0.102 No LUBS Yes
116 2-1-2009 356 Act/360 0.152 No LUBS Yes
107 5-1-2008 347 Act/360 0.102 No LUBS Yes
232 10-1-2018 259 30/360 0.062 No LUBS Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
115 1-1-2009 355 Act/360 0.102 No LUBS Yes
104 2-1-2008 359 Act/360 0.102 No Lehman Brothers Yes
78 12-1-2005 354 Act/360 0.102 No LUBS Yes
289 7-1-2023 289 30/360 0.152 No Lehman Brothers Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
79 1-11-2006 355 Act/360 0.177 No Lehman Brothers Yes
117 3-1-2009 297 Act/360 0.102 No Lehman Brothers Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
57 3-1-2004 297 Act/360 0.102 No LUBS Yes
79 1-1-2006 355 Act/360 0.102 No LUBS Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
118 4-1-2009 358 Act/360 0.122 No LUBS Yes
78 12-1-2005 354 Act/360 0.102 No LUBS Yes
234 12-1-2018 234 30/360 0.062 No LUBS Yes
109 7-11-2008 289 Act/360 0.177 No Lehman Brothers Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
115 1-1-2009 355 Act/360 0.102 No LUBS Yes
114 12-1-2008 354 Act/360 0.152 No LUBS Yes
80 2-1-2006 356 Act/360 0.102 No LUBS Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
114 12-1-2008 354 Act/360 0.102 No LUBS Yes
105 3-1-2008 345 Act/360 0.182 No Lehman Brothers Yes
114 12-1-2008 354 Act/360 0.102 No LUBS Yes
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
235 1-1-2019 269 Act/360 0.062 No LUBS Yes
57 3-1-2004 297 Act/360 0.102 No LUBS Yes
118 4-1-2009 358 Act/360 0.102 No LUBS Yes
82 4-1-2006 298 Act/360 0.102 No LUBS Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
114 12-1-2008 354 Act/360 0.102 No LUBS Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
105 3-1-2008 345 Act/360 0.152 No Lehman Brothers Yes
117 3-1-2009 357 Act/360 0.122 No LUBS Yes
111 9-11-2008 291 Act/360 0.177 No Lehman Brothers Yes
174 12-1-2013 354 Act/360 0.102 No LUBS Yes
119 5-1-2009 299 Act/360 0.122 No Lehman Brothers Yes
117 3-11-2009 297 Act/360 0.177 No Lehman Brothers Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
116 2-1-2009 296 Act/360 0.102 Yes LUBS Yes
111 9-11-2008 351 Act/360 0.177 No Lehman Brothers Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
114 12-11-2008 294 Act/360 0.177 No Lehman Brothers Yes
239 5-1-2019 239 30/360 0.062 No Lehman Brothers Yes
176 2-1-2014 356 Act/360 0.102 No LUBS Yes
236 2-1-2019 236 30/360 0.062 No Lehman Brothers Yes
117 3-1-2009 261 Act/360 0.152 No LUBS Yes
116 2-11-2009 296 Act/360 0.177 No Lehman Brothers Yes
107 5-11-2008 347 Act/360 0.177 No Lehman Brothers Yes
82 4-1-2006 358 Act/360 0.102 No LUBS Yes
238 4-1-2019 238 30/360 0.062 No LUBS Yes
107 5-1-2008 347 Act/360 0.152 No Lehman Brothers Yes
115 1-1-2009 355 Act/360 0.152 No LUBS Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
109 7-11-2008 289 Act/360 0.177 No Lehman Brothers Yes
113 11-1-2008 293 Act/360 0.102 No LUBS Yes
114 12-1-2008 354 Act/360 0.102 No LUBS Yes
118 4-11-2009 298 Act/360 0.177 No Lehman Brothers Yes
222 12-1-2017 222 30/360 0.062 Yes LUBS Yes
116 2-1-2009 356 Act/360 0.102 No LUBS Yes
236 2-1-2019 236 30/360 0.062 No LUBS Yes
238 4-1-2019 238 30/360 0.062 No LUBS Yes
216 6-1-2017 216 30/360 0.062 No LUBS Yes
80 2-1-2006 356 Act/360 0.102 No LUBS Yes
118 4-11-2009 358 Act/360 0.177 No Lehman Brothers Yes
117 3-1-2009 357 Act/360 0.102 No LUBS Yes
118 4-1-2009 358 Act/360 0.102 No Lehman Brothers Yes
114 12-1-2008 354 Act/360 0.102 No LUBS Yes
174 12-1-2013 294 Act/360 0.102 No LUBS Yes
115 1-11-2009 235 Act/360 0.177 No Lehman Brothers Yes
119 5-1-2009 299 Act/360 0.122 No Lehman Brothers Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
174 12-1-2013 234 Act/360 0.102 No LUBS Yes
113 11-1-2008 353 Act/360 0.102 No LUBS Yes
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
113 11-1-2008 353 Act/360 0.152 No LUBS Yes
115 1-1-2009 295 Act/360 0.102 No LUBS Yes
78 12-1-2005 294 Act/360 0.102 No LUBS Yes
117 3-1-2009 297 Act/360 0.102 No LUBS Yes
162 12-1-2012 162 30/360 0.062 No LUBS Yes
118 4-11-2009 358 Act/360 0.177 No Lehman Brothers Yes
118 4-11-2009 298 Act/360 0.177 No Lehman Brothers Yes
117 3-1-2009 297 Act/360 0.102 No LUBS Yes
114 12-11-2008 294 Act/360 0.177 No Lehman Brothers Yes
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Final
Secured by Amortization Maturity for ARD Rate CTL
Letter of Credit Type ARD Loans Increase ? CTL Guarantor Rated Party
===============================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
No Hyperam 12/31/2020 4.00
No Hyperam 3/1/2024 5.00
No Hyperam 1/1/2029 5.00
No Hyperam 3/1/2029 5.00
No Balloon
No Hyperam 6/1/2029 5.00
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Hyperam 6/11/2028 5.00
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Hyperam 8/11/2028 5.00
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Hyperam 1/1/2028 2.00
No Balloon
No Hyperam 12/11/2023 5.00
No Balloon
No Balloon
No Balloon
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
No Balloon
No Balloon
No Hyperam 1/1/2028 2.00
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Hyperam 7/11/1023 5.00
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Fully Am CTL Kmart Kmart
No Balloon CTL Bed, Bath & Beyond Bed, Bath & Beyond
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Hyperam 7/11/2023 5.00
No Balloon
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
No Balloon CTL Walgreen Walgreen
No Balloon
No Fully Am CTL Winn Dixie Winn Dixie
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon CTL Eckerd Eckerd
No Balloon
No Fully Am CTL Kmart Kmart
No Hyperam 9/11/2028 5.00
No Balloon
No Balloon
No Balloon CTL Eckerd Eckerd
No Balloon CTL Eckerd Eckerd
No Balloon
No Balloon
No Hyperam 6/11/2028 5.00
No Balloon
No Balloon
No Balloon
No Balloon CTL Eckerd Eckerd
No Balloon
No Balloon
No Balloon
No Balloon
No Fully Am
No Balloon
No Hyperam 1/11/2029 5.00
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Fully Am CTL Rite Aid Rite Aid
No Hyperam 7/11/2023 5.00
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
No Balloon CTL Eckerd Eckerd
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Hyperam 9/11/2023 5.00
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Hyperam 9/11/2028 5.00
No Balloon
No Hyperam 12/11/2023 5.00
No Fully Am CTL CVS CVS
No Balloon
No Fully Am CTL CVS CVS
No Balloon
No Hyperam 2/11/2024 5.00
No Balloon
No Balloon
No Fully Am CTL CVS CVS
No Balloon
No Balloon
No Balloon
No Hyperam 7/11/2023 5.00
No Balloon
No Balloon
No Balloon
No Fully Am CTL CVS CVS
No Balloon
No Fully Am CTL CVS CVS
No Fully Am CTL CVS CVS
No Fully Am CTL Rite Aid Rite Aid
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
No Balloon
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
No Balloon
No Balloon
No Balloon
No Balloon
No Fully Am CTL Amoco Amoco
No Balloon
No Balloon
No Balloon
No Hyperam 12/11/23 5.00
</TABLE>
<PAGE>
Lease Residual
Cross Lockbox Enhancement Value
Collateralized Account Policy Insurance
================================================================
LB99C1-1 Hard
No Hard
No Springing
No Springing
No Hard
No Springing
No Springing
No Springing
No Springing
No Springing
No Hard
No Springing
No Hard
LB99C1-4 Springing
No Springing
No Springing
LB99C1-6 Hard
No Springing
No Springing
No Springing
No Springing
No None
No Springing
No Springing
No Springing
No Springing
No Springing
LB99C1-10 None
No Springing
No Springing
No Springing
No Springing
No None
No Springing
No Springing
No Springing
LB99C1-8 Springing
No Springing
No Springing
<PAGE>
No Springing
No Springing
No Springing
No None
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No None
LB99C1-5 Springing
No None
LB99C1-5 Springing
LB99C1-7 Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Hard Yes No
No Hard Yes Yes
LB99C1-5 Springing
No Springing
No Springing
No None
No Springing
No Springing
No Springing
No Hard
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
LB99C1-9 Springing
No Springing
<PAGE>
No Hard Yes Yes
No Springing
No Hard Yes No
No None
No Springing
No Springing
No Springing
No Springing
No Hard Yes Yes
No Springing
No Hard Yes No
No Springing
No Springing
No Springing
No Hard Yes Yes
No Hard Yes Yes
No Springing
No Springing
LB99C1-6 Hard
No Springing
No Springing
No None
No Hard Yes Yes
No Springing
No Springing
LB99C1-8 Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
LB99C1-5 Hard
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Hard Yes No
LB99C1-9 Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
<PAGE>
No Hard Yes Yes
LB99C1-5 Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
No None
No Springing
No Springing
No Springing
No Springing
No Springing
No Hard Yes No
No Springing
No Hard Yes No
No Springing
No Springing
No None
No Springing
No Hard Yes No
No Springing
No Springing
No Springing
No Springing
No Springing
No Springing
LB99C1-3 None
No Hard Yes No
No Springing
No Hard Yes No
No Hard Yes No
No Hard Yes No
No Springing
No None
No Springing
No None
No Springing
LB99C1-2 Springing
No None
No Springing
No Springing
No Springing
No Springing
<PAGE>
No Springing
No Springing
No Springing
No Springing
No Hard Yes No
No None
No None
No Springing
No Springing
<PAGE>
SCHEDULE II
SCHEDULE OF EXCEPTIONS
TO MORTGAGE FILE DELIVERY
<PAGE>
LEHMAN 1999C1
6/11/99
CLOSING EXCEPTION REPORT
Schedule II
Schedule of Exceptions to Mortgage File Delivery
1 B Commercial Mortgage Trust 1999-C1
<TABLE>
<CAPTION>
Loan ID Property Name Document Type Exception Comment
- ---------------------------------------------------- -----------------------------------------------------------------------
<S> <C> <C> <C> <C>
11999C1 STARWOOD FINANC NOTE Endorsement(s) is Missing/Incorrect SECORE TO NORWEST
121999C1 HICKORY POINT M NOTE Endorsement(s) is Missing/Incorrect NORTHLAND/MARQUETTE TO NORWEST
201999C1 GRAND TRAVERSE ALNG Name is Missing/Incorrect ASSIGNEE NAME SB LBH
241999C1 1/5 PINELAWN RD NOTE Endorsement(s) is Missing/Incorrect LMDW TO NORWEST
511999C1 KOHL'S SHOPPING NOTE Endorsement(s) is Missing/Incorrect NFC TO NORWEST
881999C1 BEVERLY CENTER MODF Missing MODIFICATION OF NOTE
841999C1 OFFICE DEPOT BU NOTE Endorsement(s) is Missing/Incorrect NFC TO NORWEST
- ---------------------------------------------------- -----------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS
AND WARRANTIES OF THE DEPOSITOR
<PAGE>
Schedule III-A
(Environmental)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Control No. Property Name Current Balance
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1k DoubleTree Hotel - Seattle Airport 46,636,168
2 EAB Plaza 139,367,162
8 Carmel Plaza 28,984,263
17a Wal-Mart Plaza (Champaign) 712,009
17b Wal-Mart Plaza (Benton Harbor) 589,249
17c Wal-Mart Plaza (Chanute) 712,009
17d Wal-Mart Plaza (ElDorado) 982,082
17e Wal-Mart Plaza (Malan) 1,522,227
17f Wal-Mart Plaza (Huntington) 712,009
17g Wal-Mart Plaza (Jacksonville) 3,069,006
17h Wal-Mart Plaza (Little Falls) 613,801
17i Wal-Mart Plaza (Ontario) 3,682,807
17j Wal-Mart (Owasso) 3,118,110
17k Wal-Mart Plaza (Sturgis) 687,457
17l Wal-Mart Plaza (Crawfordsville) 1,276,706
20 Grand Traverse Crossing 14,544,278
23 Pleasure Cove and Plantation Manor 12,968,214
24 175 Pinelawn Road 12,060,459
51 Kohl's Shopping Center 6,223,242
55 9797 S. Frontage Rd. 5,970,782
69 Kmart - San Diego 4,875,876
70 Bed, Bath & Beyond 4,809,593
86 Piqua Plaza Shopping Center 3,993,247
87 Sagetree Village 3,948,820
88 Beverly Center 3,923,504
94 Office Depot Building 3,673,591
102 Executive Quarters Office Building 3,182,835
110 Pondview Plaza 2,938,034
116 Spalding Centre Shopping Center 2,813,068
129 Mountain Springs Mobile Home Estates 2,468,013
136 Mini Masters Storage Facility 2,376,980
164 Commons at Kings Crossing 1,685,936
167 Sylmar Mobile Home Park 1,597,614
174 CVS - Bessemer City 1,494,259
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-B
(Negative Amortization)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Control No. Property Name Current Balance
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
69 Kmart - San Diego 4,875,876
99 Kmart - Cincinnati 3,500,000
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-C
(Subordinate Debt)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Control No. Property Name Current Balance
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
23 Pleasure Cove and Plantation Manor 12,968,214
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-D
(Eng. Assessments)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Control No. Property Name Current Balance
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
20 Grand Traverse Crossing 14,544,278
24 175 Pinelawn Road 12,060,459
51 Kohl's Shopping Center 6,223,242
55 9797 S. Frontage Road 5,970,782
87 Sagetree Village 3,948,820
93 Branford Commerce Center 3,769,127
101 Regency Square 3,373,536
102 Executive Quarters Office Building 3,182,835
110 Pondview Plaza 2,938,034
116 Spalding Centre Shopping Center 2,813,068
129 Mountain Springs Mobile Home 2,468,013
136 Mini Masters Storage Facility 2,376,980
164 Commons at Kings Crossing 1,685,936
167 Sylmar Mobile Home Park 1,597,614
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-E
(Leasehold Interests)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Control No. Property Name Current Balance
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
2 EAB Plaza 139,367,162
4 Penn Square Mall 74,844,822
9 Boston Design Center 28,957,613
13 Pacific Park Plaza 23,261,111
83 Orange Tree Plaza 4,098,325
91 Winn Dixie 3,815,935
102 Executive Quarters Office Building 3,182,835
152 180 West Washington 1,991,666
171 CVS - Greensboro 1,502,428
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-F
Exceptions to Ground Lease Representations and Warranties
(Section 2.04(b) (xlvii))
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Clause Loan/Property Name Exception(s)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Orange Tree Plaza Further assignment following foreclosure subject to lessor's right
(B) Penn Square Mall of first refusal.
-----------------------------------------------------------------------------------------------------------------------
Executive Quarters Not expressly stated that assignments following first
post-foreclosure assignment do not require lessor's consent.
-----------------------------------------------------------------------------------------------------------------------
Starwood-Promus (Red Lion, Vancouver) Further assignment following foreclosure subject to lessor's
consent, not to be unreasonably withheld
-----------------------------------------------------------------------------------------------------------------------
Starwood-Promus (Red Lion, Idaho) Contains no such provision.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(C) CVS Greensboro Contains no such provision.
Starwood-Promus (Red Lion, Idaho)
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(F) Starwood-Promus (Red Lion, Vancouver) Contains no such provision similar to clauses (1) and (2).
Starwood-Promus (Red Lion, Idaho)
-----------------------------------------------------------------------------------------------------------------------
CVS Greensboro Does not contain a provision to the effect that no notice of
termination will be effective against the lender unless a copy has
been delivered thereto; landlord will enter new lease with lender
only if lease is terminated for incurable default
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Penn Square Mall Landlord will enter into new lease with "institutional lender"
authorized to do business in Oklahoma if lease terminated pursuant
to a bankruptcy or insolvency proceeding; lease does not expressly
provide for entering of new lease in connection with other
termination.
-----------------------------------------------------------------------------------------------------------------------
Starwood-Promus (Red Lion, Astoria, Oregon) Landlord will enter a new lease only after lender acquires lessee's
interest in lease.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(I) Starwood-Promus (Red Lion, Astoria, Oregon) Lease term expires (7/8/2013) (including renewal options) prior to
Mortgage Loan maturity (12/31/2020).
-----------------------------------------------------------------------------------------------------------------------
Starwood-Promus (Red Lion, Idaho) Lease term expires (5/1/2021) one year following Mortgage Loan
maturity (12/31/2020).
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(J) CVS Greensboro Lease terminates if there is a taking of all or substantially all of
the premises. Lessor will get portion of condemnation award for the
land and lessee will get portion of the award for the building.
There is no agreement as to who will hold condemnation award or
insurance proceeds.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Starwood-Promus (Red Lion, Vancouver) Ground lessor gets condemnation award except for "unrecouped"
percentage of market value for improvements made by ground lessee;
lessor holds insurance proceeds.
- ------------------------------------------------------------------------------------------------------------------------------------
Orange Tree Plaza If the taking is sufficiently large that the lease is terminated the
award is split so that ground lessee gets the award for buildings
and loss of leasehold estate, except for that portion allocable to
useful life of buildings that extends beyond lease term, which
portion goes to the lessor; and lessee also gets portion of award
for "severance", that portion being equal to the proportion
represented by the remaining term of the lease over the total lease
term (lender will be entitled to lessee's portion of award, which
may be applied to loan).
- ------------------------------------------------------------------------------------------------------------------------------------
Boston Design Center If the lender determines that permits to rebuild the property are
not obtainable, casualty proceeds will be applied first to pay the
lessor for building "core" and "shell" as they existed in 1989, and
then to the lender.
- ------------------------------------------------------------------------------------------------------------------------------------
EAB (Coliseum Plaza) The condemnation award is divided between the lessor and ground
Pacific Park Plaza lessee according to provisions that provide for such allocation (for
Starwood-Promus (Red Lion, Astoria, Oregon) EAB this involves the parties requesting a court to determine the
Executive Quarters allocation and, failing that, arbitration). For Starwood-Promus
(Astoria), lender may require that lessee's portion be applied to
Mortgage Loan.
-----------------------------------------------------------------------------------------------------------------------
Winn Dixie Landlord is entitled to make an independent claim for value of land
as if unimproved.
-----------------------------------------------------------------------------------------------------------------------
Penn Square Mall Condemnation proceeds to be used by lessor for replacement parking
area to the extent necessary to replace condemned parking area;
lease silent as to any other application thereof.
-----------------------------------------------------------------------------------------------------------------------
Pacific Park Plaza Casualty or condemnation proceeds to be held by third-party
financial institution.
- ------------------------------------------------------------------------------------------------------------------------------------
Starwood-Promus (Red Lion, Idaho) Contains no provisions regarding casualty or condemnation.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(L) Starwood-Promus (Red Lion, Astoria, Oregon) Contains no substantially similar provision.
Starwood-Promus (Red Lion, Vancouver)
-----------------------------------------------------------------------------------------------------------------------
CVS Greensboro Lessor will enter new lease with lender only if lender forecloses or
Boston Design Center lease is terminated for incurable default.
-----------------------------------------------------------------------------------------------------------------------
Penn Square Mall Landlord will enter into new lease with "institutional lender"
authorized to do business in Oklahoma if lease terminated pursuant
to a bankruptcy or insolvency proceeding; lease does not expressly
provide for entering of new lease in connection with other
termination.
-----------------------------------------------------------------------------------------------------------------------
Starwood-Promus (Red Lion, Idaho) Ground lessor will recognize lender as lessee under the lease if it
forecloses and cures all curable defaults and assumes all
obligations under the lease.
- ------------------------------------------------------------------------------------------------------------------------------------
Pacific Park Plaza Lender will have no right to enter new lease under one of two ground
leases if previous lease was terminated as a result of a default
that lender did not cure.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-G
(Exception (G))
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Control No. Property Name Current Balance
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
97 Eckerd - Baton Rouge 3,531,717
104 Eckerd - Shreveport 3,110,478
171 CVS - Greensboro 1,502,428
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-G
(Exception (H))
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Control No. Property Name Current Balance
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
89 Walgreen - Riverview 3,918,245
97 Eckerd - Baton Rouge 3,531,717
103 Eckerd - Arlington 3,145,029
104 Eckerd - Shreveport 3,110,478
111 Eckerd - Waxahachie 2,933,907
138 Eckerd - Rotterdam 2,265,847
171 CVS - Greensboro 1,502,428
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-G
(Exception (K))
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Control No. Property Name Guarantor Current Balance
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
128 Rite Aid - Waterford Eckerd Corp. 2,475,182
138 Eckerd - Rotterdam Eckerd Corp. 2,265,847
156 CVS - Statesville CVS Corp. 1,896,552
158 CVS - Mooresville CVS Corp. 1,846,561
171 CVS - Greensboro CVS Corp. 1,502,428
173 CVS - Newton CVS Corp. 1,494,423
174 CVS - Bessemer City CVS Corp. 1,494,259
175 Rite Aid- Sterling Heights Eckerd Corp. 1,452,137
CVS - Beaufort CVS Corp.
CVS - Denver CVS Corp.
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule III-H
(Due Date)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Control No. Property Name Current Balance Day Due
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
17 Wal-Mart 17,677,473 11
23 Pleasure Cove and Plantation Manor 12,968,214 11
36 Holiday Inn Express - Birmingham 8,448,774 11
55 9797 S. Frontage Road 5,970,782 11
70 Bed, Bath & Beyond 4,809,593 10
87 Sagetree Village 3,948,820 11
100 Blue Garden Apartments 3,374,783 11
107 Wal-Mart Plaza 2,998,623 11
118 Camelot Manufactured Housing Community 2,790,060 11
129 Mountain Springs Mobile Home Estates 2,468,013 11
147 Riverview Commons MHC 2,078,208 11
150 5575 E. Winnemucca Blvd. 1,995,700 11
153 Santiago Creek MHP 1,986,364 11
155 Countryside Estates Manufactured Home Park 1,912,124 11
160 Quail Valley Shopping Center 1,743,719 11
161 Southern Pavilion Mini Storage 1,737,789 11
167 Sylmar Mobile Home Park 1,597,614 11
170 Michigan MHP Portfolio 1,537,421 11
177 Northbrook Estates 1,363,662 11
182 Lincoln Park Mobile Home Village 1,238,687 11
192 Shangrai-La 849,131 11
193 275 North Saguaro Drive 848,518 11
195 Angleton Mobile Home Park 795,220 11
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 AND CLASS A-2 CERTIFICATES
CLASS [A-1] [A-2] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1999-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<S> <C>
Pass-Through Rate: ___% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: June 1, 1999
Cut-off Date: As defined in the Pooling Class Principal Balance of all the Class [A-1]
and Servicing Agreement [A-2] Certificates as of the Closing Date:
$____________
Closing Date: June 10, 1999
Aggregate unpaid principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off Date, after
July 15, 1999 deducting payments of principal due on or
before such date (the "Initial Pool Balance"):
Master Servicer: $1,580,066,327
First Union National Bank
Special Servicer:
GMAC Commercial Mortgage Corporation
Trustee:
Norwest Bank Minnesota, National Association
Certificate No. [A-1] [A-2]-___ CUSIP No. _____________
</TABLE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, GMAC COMMERCIAL
MORTGAGE CORPORATION, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement) and Norwest Bank Minnesota, National Association, as
trustee (the "Trustee", which term includes any successor
<PAGE>
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the
<PAGE>
Collection Account and, if established, the REO Account may be made from time to
time for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any
<PAGE>
Controlling Class Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the Initial Pool Balance specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 662/3% of the Voting
Rights allocated to each of the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. In addition, the Agreement
permits the amendment thereof, in certain circumstances, with rating
confirmation of the ratings on the rated Classes of Certificates and the consent
of the Holders of the unrated Classes of Certificates. The Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
<PAGE>
This is one of the Class [A-1][A-2] Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to for the account of . Distributions
made by check (such check to be made payable to __________________) and all
applicable statements and notices should be mailed to.
This information is provided by __________________________, the
assignee named above, or _____________________, as its agent.
<PAGE>
EXHIBIT A-2
FORM OF CLASS X CERTIFICATE
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<S> <C>
Pass-Through Rate: ___% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: June 1, 1999
Cut-off Date: As defined in the Pooling Class Principal Balance of all the Class X
and Servicing Agreement Certificates as of the Closing Date:
$____________
Closing Date: June 10, 1999
Aggregate unpaid principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off Date, after
July 15, 1999 deducting payments of principal due on or
before such date (the "Initial Pool Balance"):
Master Servicer: $1,580,066,327
First Union National Bank
Special Servicer:
GMAC Commercial Mortgage Corporation
Trustee:
Norwest Bank Minnesota, National Association
Certificate No. X-___ CUSIP No. _____________
</TABLE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, GMAC COMMERCIAL
MORTGAGE CORPORATION, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS JUNE 10, 1999. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0%
(EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE
ANTICIPATED REPAYMENT DATES) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $_________ OF INITIAL
CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ______% PER ANNUM AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$_______ PER $________ OF INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER A
CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE AS TO
WHETHER OR HOW THE MORTGAGE LOANS WILL PREPAY.]
<PAGE>
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Structured Asset Securities Corporation as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
First Union National Bank as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
<PAGE>
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
<PAGE>
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 662/3% of the Voting
Rights allocated to each of the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. In addition, the Agreement
permits the amendment thereof, in certain circumstances, with rating
confirmation of the ratings on the rated Classes of Certificates and the consent
of the Holders of the unrated Classes of Certificates. The Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, _________________to for the account
of ___________________.
Distributions made by check (such check to be made payable to
_________________) and all applicable statements and notices should be mailed to
__________________.
This information is provided by _________________________, the
assignee named above, or ______________________, as its agent.
<PAGE>
EXHIBIT A-3
FORM OF CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES
CLASS [B][C][D][E] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<S> <C>
Pass-Through Rate: ___% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: June 1, 1999
Cut-off Date: As defined in the Pooling Class Principal Balance of all the Class [B][C][D][E]
and Servicing Agreement Certificates as of the Closing Date:
$____________
Closing Date: June 10, 1999
Aggregate unpaid principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off Date, after
July 15, 1999 deducting payments of principal due on or
before such date (the "Initial Pool Balance"):
Master Servicer: $1,580,066,327
First Union National Bank
Special Servicer:
GMAC Commercial Mortgage Corporation
Trustee:
Norwest Bank Minnesota, National Association
Certificate No. [B][C][D][E]-___ CUSIP No. _____________
</TABLE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, GMAC COMMERCIAL
MORTGAGE CORPORATION, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS
<PAGE>
CERTIFICATE IS JUNE 10, 1999. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN
ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID
RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (EXCEPT THAT THE ARD LOANS ARE
ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES) (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$________ OF OID PER $_________ OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS ______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $_______ PER $________ OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER A CONSTANT YIELD METHOD WITH DAILY
COMPOUNDING. NO REPRESENTATION IS MADE AS TO WHETHER OR HOW THE MORTGAGE LOANS
WILL PREPAY.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement) and Norwest Bank Minnesota, National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate
<PAGE>
and the amount required to be distributed pursuant to the Agreement on the
applicable Distribution Date in respect of the Class of Certificates to which
this Certificate belongs. All distributions made under the Agreement in respect
of this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution in respect of this Certificate (determined without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to this Certificate) will be made after
due notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in such notice. Also notwithstanding the foregoing, any
distribution that may be made with respect to this Certificate in reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and
<PAGE>
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate by the Depositor, Lehman
Brothers Inc. or any of their respective Affiliates or any transfer of this
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03 of the Agreement, the Certificate Registrar shall
refuse to register any transfer of this Certificate unless it has received from
the prospective Transferee either: (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject transfer, deliver to the
Certificate Registrar a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that either: (i) such Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt form the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of
<PAGE>
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 662/3% of the Voting
Rights allocated to each of the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. In addition, the Agreement
permits the amendment thereof, in certain circumstances, with rating
confirmation of the ratings on the rated Classes of Certificates and the consent
of the Holders of the unrated Classes of Certificates. The Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
<PAGE>
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B][C][D][E] Certificates referred to in
the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, _________________to for the account
of ___________________.
Distributions made by check (such check to be made payable to
_________________) and all applicable statements and notices should be mailed to
__________________.
This information is provided by _________________________, the
assignee named above, or ______________________, as its agent.
<PAGE>
EXHIBIT A-4
FORM OF CLASS F, CLASS G, CLASS H, CLASS J,
CLASS K, CLASS L AND CLASS M CERTIFICATES
CLASS [F] [G] [H] [J] [K] [L] [M] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<S> <C>
Pass-Through Rate: ____% Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: June 1, 1999
Cut-off Date: As defined in the Pooling Class Principal Balance of all the Class
and Servicing Agreement [F] [G] [H] [J] [K] [L] [M] Certificates
as of the Closing Date:
Closing Date: June 10, 1999 $____________
First Distribution Date: Aggregate unpaid principal balance of
July 15, 1999 the Mortgage Pool as of the Cut-off
Date, after deducting payments of
Master Servicer: principal due on or before such date (the
First Union National Bank "Initial Pool Balance"):
$1,580,066,327
Special Servicer:
GMAC Commercial Mortgage Corporation
Trustee:
Norwest Bank Minnesota, National Association
Certificate No. [F][G][H][J][K][L][M]-___ CUSIP No. ____________
</TABLE>
[FOR CLASS F AND CLASS G CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED
<PAGE>
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, GMAC COMMERCIAL
MORTGAGE CORPORATION, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
<PAGE>
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS JUNE 10, 1999. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0%
(EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE
ANTICIPATED REPAYMENT DATES) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $__________ OF OID PER $__________ OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____% PER ANNUM AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____
PER $_______ OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER A CONSTANT
YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE AS TO WHETHER OR
HOW THE MORTGAGE LOANS WILL PREPAY.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that _____________________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the principal balance of this Certificate (its
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal balance of all the Certificates of the same Class as this Certificate
(their "Class Principal Balance") as of the Closing Date) in that certain
beneficial ownership interest in the Trust evidenced by all the Certificates of
the same Class as this Certificate. The Trust was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among Structured Asset Securities Corporation as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement) and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
<PAGE>
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest,
<PAGE>
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Lehman Brothers
Inc. or any of their respective Affiliates or, if this Certificate constitutes a
Book-Entry Certificate, a transfer of this Certificate to a successor Depository
or to the applicable Certificate Owner in accordance with Section 5.03 of the
Agreement), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. If this Certificate
constitutes a Book-Entry Certificate and a transfer of any interest herein is to
be made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of any interest
herein by the Depositor, Lehman Brothers Inc. or any of their respective
Affiliates), then the Certificate Owner desiring to effect such transfer shall
be required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit F-2C to the
Agreement or as Exhibit F-2D to the Agreement, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. If this Certificate constitutes a Book-Entry Certificate and any
Transferee of an interest herein does not, in connection with the subject
transfer, deliver to the Transferor the Opinion of Counsel or one of the
certifications described in the preceding sentence, then such Transferee shall
be deemed to
<PAGE>
have represented and warranted that all the certifications set forth in either
Exhibit F-2C or Exhibit F-2D attached to the Agreement are, with respect to the
subject transfer, true and correct. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class of
Certificates to which this Certificate belongs, under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of this Certificate or any interest herein
without registration or qualification. Any Certificateholder or Certificate
Owner desiring to effect a transfer sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Lehman Brothers Inc., the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar and their respective Affiliates
against any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, Lehman Brothers Inc. or any of their respective Affiliates or, if
this Certificate constitutes a Book-Entry Certificate, any transfer of this
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03 of the Agreement, the Certificate Registrar shall
refuse to register the transfer of this Certificate unless it has received from
the prospective Transferee, and, if this Certificate constitutes a Book-Entry
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, either: (i) a certification
to the effect that such prospective Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate or
such interest herein by such prospective Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transaction Class Exemption
95-60; or (iii) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the case may be, that such transfer will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. If any Transferee of
this Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar (if this Certificate constitutes
a Definitive Certificate) or the Transferor (if this Certificate constitutes a
Book-Entry
<PAGE>
Certificate) a certification and/or Opinion of Counsel as required by the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or such interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[For Class F and Class G Certificates only: Notwithstanding the
foregoing, for so long as this Certificate is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.]
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 662/3% of the Voting
Rights allocated to each of the affected Classes. Any such consent by the Holder
of this
<PAGE>
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. In addition, the Agreement permits the
amendment thereof, in certain circumstances, with rating confirmation of the
ratings on the rated Classes of Certificates and the consent of the Holders of
the unrated Classes of Certificates. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F] [G] [H] [J] [K] [L] [M] Certificates
referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, _________________to for the account
of ___________________.
Distributions made by check (such check to be made payable to
_________________) and all applicable statements and notices should be mailed to
__________________.
This information is provided by _________________________, the
assignee named above, or ______________________, as its agent.
<PAGE>
EXHIBIT A-5
FORM OF CLASS R-I, CLASS R-II AND CLASS R-III CERTIFICATES
CLASS [R-I][R-II][R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
<TABLE>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: June 1, 1999 Certificate in the related Class: ___%
Cut-off Date: As defined in the Pooling
and Servicing Agreement
Aggregate unpaid principal balance of the
Closing Date: June 10, 1999 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: before such date (the "Initial Pool
July 15, 1999 Balance"): $1,580,066,327
Master Servicer:
First Union National Bank
Special Servicer:
GMAC Commercial Mortgage Corporation
Trustee:
Norwest Bank Minnesota, National Association
Certificate No. [R-I][R-II][R-III]- __
</TABLE>
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, GMAC COMMERCIAL
MORTGAGE CORPORATION, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL
<PAGE>
NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that _____________________________________________ is
the registered owner of the Percentage Interest evidenced by this Certificate
(as specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement) and Norwest Bank Minnesota, National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the
<PAGE>
Collection Account and, if established, the REO Account may be made from time to
time for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Lehman Brothers
Inc. or any of their respective Affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives (and, upon receipt,
may conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A to the
Agreement or as Exhibit F-2B to the Agreement; or (ii) an Opinion of Counsel
satisfactory to the Trustee to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based. If any Transferee of this Certificate does not, in
connection with the subject transfer, deliver to the Certificate Registrar one
of the certifications described in clause (i) of the preceding sentence or the
Opinion of Counsel described in clause (ii) of the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit F-2A or Exhibit F-2B attached to the
Agreement are, with respect to the subject transfer, true and correct. None of
the Depositor, the Trustee or the Certificate Registrar is obligated to register
or qualify the Class of Certificates to which this Certificate belongs, under
the Securities Act or any other securities law or to take any action not
otherwise
<PAGE>
required under the Agreement to permit the transfer of this Certificate or any
interest herein without registration or qualification. Any Certificateholder
desiring to effect a transfer sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Lehman Brothers Inc., the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar and their respective Affiliates
against any liability that may result if such transfer, sale, pledge or other
disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, Lehman Brothers Inc. or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject transfer, deliver to the
Certificate Registrar a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that either: (i) such Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt form the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee
<PAGE>
shall become a Holder of this Certificate in violation of the provisions of such
Section 5.02(d), to have irrevocably authorized the Trustee under clause (ii)(A)
of such Section 5.02(d) to deliver payments to a Person other than such Person
and to have irrevocably authorized the Trustee under clause (ii)(B) of such
Section 5.02(d) to negotiate the terms of any mandatory disposition and to
execute all instruments of transfer and to do all other things necessary in
connection with any such disposition. Each Person holding or acquiring any
Ownership Interest in this Certificate must be a Permitted Transferee and shall
promptly notify the Trustee and the REMIC Administrator of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, representing and warranting, among
other things, that such Transferee is a Permitted Transferee, that it is not
acquiring its Ownership Interest in this Certificate as a nominee, trustee or
agent for any Person that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of Section 5.02(d)
of the Agreement and agrees to be bound by them. Notwithstanding the delivery of
a Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee. In addition,
the Certificate Registrar shall not register the transfer of an Ownership
Interest in this Certificate to any entity classified as a partnership under the
Code unless at the time of transfer, all of its beneficial owners are United
States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the REMIC
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the REMIC Administrator the following: (a) written notification from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the REMIC Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause REMIC I, REMIC II or REMIC III
to (A) cease to qualify as a REMIC or (B) be subject to an entity-level tax
caused by the Transfer of a Residual Interest
<PAGE>
Certificate to a Person which is not a Permitted Transferee, or (ii) cause a
Person other than the prospective Transferee to be subject to a REMIC-related
tax caused by the Transfer of a Residual Interest Certificate to a Person that
is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person; provided that, if such
a Transferee is classified as a partnership under the Code, such Transferee can
only be a Permitted Transferee if all of its beneficial owners are United States
Persons.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by such governmental unit), (ii) a foreign government,
an international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the REMIC Administrator based upon an opinion of counsel that the
holding of an Ownership Interest in a Residual Interest Certificate by such
Person may cause the Trust or any Person having an Ownership Interest in any
Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Interest Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special
<PAGE>
Servicer, the Trustee, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 662/3% of the Voting
Rights allocated to each of the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. In addition, the Agreement
permits the amendment thereof, in certain circumstances, with rating
confirmation of the ratings on the rated Classes of Certificates and the consent
of the Holders of the unrated Classes of Certificates. The Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III]Certificates referred
to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________________ for
the account of ______________________________________.
Distributions made by check (such check to be made payable to
______________________________________ ) and all applicable statements and
notices should be mailed to ________________________________________.
This information is provided by _______________________________ ,
the assignee named above, or ________________________, as its agent.
<PAGE>
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
====================================================================
STATEMENT SECTIONS PAGE(s)
-------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property Stratification Tables 7-9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specially Serviced Loan Detail 14-15
Modified Loan Detail 16
Liquidated Loan Detail 17
====================================================================
Underwriter
==================================
Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
Contact: Tricia Hall
Phone Number: (212) 526-5850
==================================
Servicer
==================================
First Union National Bank
Charlotte Plaza, Floor 23 NC-1075
201 South College Street
Charlotte, NC 28288
Contact: Timothy S. Ryan
Phone Number: (704) 374-2217
==================================
Special Servicer
==================================
GMAC Commercial Mortgage
550 California Street, 12th Floor
San Francisco, CA 94104
Contact: Henry Bieber
Phone Number: (415) 835-9268
==================================
This report has been compiled from information provided to Norwest by various
third parties, which may include the Servicer, Master Servicer, Special Servicer
and others. Norwest has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Norwest
expressly disclaims any responsibility for the accuracy or completeness of
information furnished by third parties.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 1 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Certificate Distribution Detail
<TABLE>
<CAPTION>
====================================================================================================================================
Realized
Loss/
Pass- Additional Current
Through Original Beginning Principal Interest Prepayment Trust Fund Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Penalties Expenses Distribution Balance Level(1)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-I 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-II 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-III 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
====================================================================================================================================
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
<CAPTION>
===============================================================================================
Pass- Original Beginning Ending
Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Penalties Distribution Amount
===============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
X 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
===============================================================================================
</TABLE>
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending certificate balance of the designated
class and (ii) the ending certificate balance of all classes which are not
subordinate to the designated class and dividing the result by (A).
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 2 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Certificate Factor Detail
<TABLE>
<CAPTION>
============================================================================================================
Realized Loss/
Class CUSIP Beginning Principal Interest Prepayment Additional Trust Ending
Balance Distribution Distribution Penalties Fund Expenses Balance
============================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-I 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-II 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-III 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
============================================================================================================
</TABLE>
================================================================================
Beginning Ending
Class CUSIP Notional Interest Prepayment Notional
Amount Distribution Penalties Amount
================================================================================
X 0.00000000 0.00000000 0.00000000 0.00000000
================================================================================
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 3 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Reconciliation Detail
Advance Summary
P & I Advances Outstanding 0.00
Servicing Advances Outstanding 0.00
Reimbursement for Interest on P&I 0.00
Advances paid from general collections
Reimbursement for Interest on Servicing 0.00
Advances paid from general collections
Master Servicing Fee Summary
Current Period Accrued Master Servicing Fees 0.00
Less Master Servicing Fees on Delinquent Payments 0.00
Less Reductions to Master Servicing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
Certificate Interest Reconciliation
================================================================================
Accrued Net Aggregate Distributable Distributable
Class Certificate Prepayment Certificate Certificate Interest
Interest Interest Shortfall Interest Adjustment
================================================================================
A-1 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00
X 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00
L 0.00 0.00 0.00 0.00
================================================================================
Total 0.00 0.00 0.00 0.00
================================================================================
================================================================================
Additional Interest ARD Additonal Total Unpaid
Trust Fund Distribution Interest Interest Distributable
Expenses Distribution Certificate Int.
================================================================================
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
================================================================================
0.00 0.00 0.00 0.00 0.00
================================================================================
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 4 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Other Required Information
- --------------------------------------------------------------------------------
Available Distribution Amount 0.00
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance of Loans 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Trust Fund Expenses 0.00
Deposit into the Interest Reserve Account 0.00
Withdrawal from the Interest Reserve Account 0.00
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00
Original Subordination Level
Class A-1 0.000000% Class F 0.000000%
Class A-2 0.000000% Class G 0.000000%
Class B 0.000000% Class H 0.000000%
Class C 0.000000% Class J 0.000000%
Class D 0.000000% Class K 0.000000%
Class E 0.000000% Class L 0.000000%
- --------------------------------------------------------------------------------
Appraisal Reduction Amount
================================================
Appraisal Date Appraisal
Loan Reduction Reduction
Number Amount Effected
================================================
None
================================================
Total
================================================
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 5 of 17
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Ratings Detail
<TABLE>
<CAPTION>
====================================================================================================
Original Ratings Current Ratings (1)
Class CUSIP ---------------------------------------------------------------------------
DCR Fitch Moody's S & P DCR Fitch Moody's S & P
====================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1
A-2
X
B
C
D
E
F
G
H
J
K
L
====================================================================================================
</TABLE>
NR - Designates that the class was not rated by the above agency at the time of
original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain rating
information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date
listed above. The ratings may have changed since they were obtained. Because the
ratings may have changed, you may want to obtain current ratings directly from
the rating agencies.
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
(312) 368-3100
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
(212) 908-0500
Moody's Investors Service
99 Church Street
New York, New York 10007
(212) 553-0300
Standard & Poor's Rating Services
26 Broadway
New York, New York 10004
(212) 208-8000
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 6 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Scheduled Balance
================================================================================
Scheduled # of Scheduled % of WAM Weighted
Balance Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
State (3)
================================================================================
# of Scheduled % of WAM Weighted
State Props. Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
See footnotes on last page of this section.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 7 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Debt Service Coverage Ratio
================================================================================
Debt Service # of Scheduled % of WAM Weighted
Coverage Rate Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Note Rate
================================================================================
Note # of Scheduled % of WAM Weighted
Rate Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Property Type (3)
================================================================================
Property # of Scheduled % of WAM Weighted
Type Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Seasoning
================================================================================
# of Scheduled % of WAM Weighted
Seasoning Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
See footnotes on last page of this section.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 8 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Anticipated Remaining Term (ARD and Balloon Loans)
================================================================================
Anticipated Remaining # of Scheduled % of WAM Weighted
Term (2) Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Remaining Amortization Term (ARD and Balloon Loans)
================================================================================
Remaining Amortization # of Scheduled % of WAM Weighted
Term Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Remaining Stated Term (Fully Amortizing Loans)
================================================================================
Remaining Stated # of Scheduled % of WAM Weighted
Term Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
Age of Most Recent NOI
================================================================================
Age of Most # of Scheduled % of WAM Weighted
Recent NOI Loans Balance Agg. (2) WAC Avg DSCR (1)
Bal.
================================================================================
================================================================================
Totals
================================================================================
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most current
DSCR provided by the Servicer is used. To the extent that no DSCR is provided by
the Servicer, information from the offering document is used. The Trustee makes
no representations as to the accuracy of the data provided by the borrower for
this calculation. "NAP" means not applicable and relates to the ommission of
credit lease loans in the calculation of DSCR.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the related
mortgage loan as disclosed in the offering document.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 9 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Mortgage Loan Detail
================================================================================
Loan Property Interest Principal Gross
Number ODCR Type (1) City State Payment Payment Coupon
================================================================================
Totals
================================================================================
<TABLE>
<CAPTION>
=====================================================================================================
Anticipated Maturity Neg. Beginning Ending Paid Appraisal Appraisal Res. Mod.
Repayment Date Amort Scheduled Scheduled Thru Reduction Reduction Strat. Code
Date (Y/N) Balance Balance Date Date Amount (2) (3)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
=====================================================================================================
Totals
=====================================================================================================
</TABLE>
(1) Property Type Code
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed In Lieu Of
6 - DPO Foreclosure
(3) Modification Code
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 10 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Principal Prepayment Detail
<TABLE>
<CAPTION>
====================================================================================================================================
Loan Number Offering Document Principal Prepayment Amount Prepayment Penalties
---------------------------------------------------------------------------------------------
Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Premium
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
====================================================================================================================================
Totals
====================================================================================================================================
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 11 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Historical Detail
<TABLE>
<CAPTION>
=================================================================================================
Delinquencies
- -------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO
Date # Balance # Balance # Balance # Balance # Balance
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
=================================================================================================
</TABLE>
=========================================================================
Prepayments Rate and Maturities
- -------------------------------------------------------------------------
Modifications Curtailments Payoff Next Weighted Avg. WAM
# Balance # Amount # Amount Coupon Remit
- -------------------------------------------------------------------------
=========================================================================
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 12 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Delinquency Loan Detail
<TABLE>
<CAPTION>
===========================================================================================
Offering # of Current Outstanding Status of
Loan Number Document Months Paid Through P & I P & I Mortgage
Cross-Reference Delinq. Date Advances Advances ** Loan (1)
===========================================================================================
<S> <C> <C> <C> <C> <C> <C>
===========================================================================================
Totals
===========================================================================================
<CAPTION>
=================================================================================================
Resolution Current Outstanding
Strategy Servicing Foreclosure Servicing Servicing Bankruptcy Date REO
Code (2) Transfer Date Date Advances Advances Date
=================================================================================================
<S> <C> <C> <C> <C> <C> <C>
=================================================================================================
Totals
=================================================================================================
</TABLE>
(1) Status of Mortgage Loan
A - Payment Not Received 2 - Two Months Delinquent
But Still in Grace Period 3 - Three Or More Months Delinquent
B - Late Payment But Less 4 - Assumed Scheduled Payment
Than 1 Month Delinquent (Performing Matured Balloon)
0 - Current 7 - Foreclosure
1 - One Month Delinquent 9 - REO
(2) Resolution Strategy Code
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed In Lieu Of
6 - DPO Foreclosure
** Outstanding P & I Advances include the current period advance
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 13 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
<TABLE>
<CAPTION>
=========================================================================================
Distribution Loan Offering Servicing Resolution Property
Date Number Document Transfer Strategy Scheduled Type (2)
Cross-Reference Date Code (1) Balance
=========================================================================================
<S> <C> <C> <C> <C> <C> <C>
=========================================================================================
</TABLE>
================================================================================
Interest Actual Net NOI Note Maturity Remaining
State Rate Balance Operating Date DSCR Date Date Amortization
Income Term
================================================================================
================================================================================
(1) Resolution Strategy Code
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed In Lieu Of
6 - DPO Foreclosure
(2) Property Type Code
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 14 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
================================================================================
Offering Resolution Site
Distribution Loan Document Strategy Inspection
Date Number Cross-Reference Code (1) Date
================================================================================
================================================================================
================================================================================
Appraisal Appraisal Other REO
Phase 1 Date Date Value Property Revenue Comment
================================================================================
================================================================================
(1) Resolution Strategy Code
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed In Lieu Of
6 - DPO Foreclosure
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 15 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Modified Loan Detail
<TABLE>
<CAPTION>
==============================================================================================
Offering
Loan Document Pre-Modification Modification Date Modification Description
Number Cross-Reference Balance
==============================================================================================
<S> <C> <C> <C> <C>
==============================================================================================
Total
==============================================================================================
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 16 of 17
<PAGE>
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
------------------------------------------
For Additional Information, please contact
[LOGO] Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
@ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. ------------------------------------------
Corporate Trust Services Payment Date: 07/15/1999
3 New York Plaza, 15th Floor
New York, NY 10004 Record Date: 06/30/1999
- --------------------------------------------------------------------------------
Liquidated Loan Detail
================================================================================
Loan Final Recovery Offering Appraisal Appraisal Actual
Number Determination Document Date Value Balance
Date Cross-Reference
================================================================================
================================================================================
Current Total
================================================================================
Cumulative Total
================================================================================
<TABLE>
<CAPTION>
==============================================================================================================
Gross Gross Proceeds Aggregate Net Net Proceeds Realized Repurchased
Proceeds as a % of Liquidation Liquidation as a % of Loss by Seller
Actual Balance Expenses* Proceeds Actual Balance (Y/N)
==============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==============================================================================================================
Current Total
==============================================================================================================
Cumulative Total
==============================================================================================================
</TABLE>
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 17 of 17
<PAGE>
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: Structured Asset Securities Corporation, LB Commercial Mortgage Trust
1999-C1 Commercial Mortgage Pass Through Certificates, Series 1999-C1 (the
"Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated
as of June 1, 1999 related to the above-referenced Certificates (the
"Agreement"), Norwest Bank Minnesota, National Association, in its capacity as
trustee (the "Trustee"), hereby certifies as to each Mortgage Loan subject as of
the date hereof to the Agreement (except as identified in the exception report
attached hereto) that: (i) all documents specified in clauses (i) through (v),
(vii) and (viii) (without regard to the second parenthetical in such clause
(viii)) of the definition of "Mortgage File" are in its possession or the
possession of a Custodian on its behalf; (ii) the recordation/filing
contemplated by Section 2.01(c) of the Agreement has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents);
(iii) all documents received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
(A) appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor), (B) appear
to have been executed (where appropriate) and (C) purport to relate to such
Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a)
of the Agreement and in this Certification and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (v) and (vi)(B) of the definition of "Mortgage
Loan Schedule" accurately reflects the information set forth in the Mortgage
File.
Neither the Trustee nor any Custodian is under any duty or obligation to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face, Furthermore, neither the Trustee nor any Custodian
shall have any responsibility for determining whether the text of any assignment
or endorsement is in proper or recordable form, whether the requisite recording
of any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction. In performing the review contemplated herein, the Trustee or any
Custodian may rely on the Depositor as to the purported genuineness of any such
document and any signature thereon.
<PAGE>
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By: __________________________
Name: ________________________
Title: _________________________
<PAGE>
Schedule A
First Union National Bank
First Union Capital Markets
NC 1075
8739 Research Drive, URP-4
Charlotte, NC 28288-1075
Attn: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass Through
Certificates, Series 1999-C1
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, PA 19044-8015
Attn: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass Through
Certificates, Series 1999-C1
Structured Asset Securities Corporation
200 Vesey Street
New York, NY 10285
Attn: LB Commercial Mortgage Trust 1999-C1, Series 1999-C1
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Attn: LB Commercial Mortgage Trust 1999-C1, Series 1999-C1
Merrill, Lynch, Pierce, Fenner & Smith Incorporated
250 Vesey Street
New York, NY 10281
Attn: LB Commercial Mortgage Trust 1999-C1, Series 1999-C1
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
________, 19__
Norwest Bank Minnesota, National Association
1015 10th Avenue S.E.
Minneapolis, Minnesota 55414
Attention: Corporate Trust Services (CMBS)
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), by
and among Structured Asset Securities Corporation as depositor, the undersigned
as master servicer (the "Master Servicer"), GMAC Commercial Mortgage Corporation
as special servicer, and you as trustee (the "Trustee"), the undersigned hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by or on behalf of you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Property Name:
Address:
Control No.:
If only particular documents in the Mortgage File are requested,
please specify which:
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)
<PAGE>
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
FIRST UNION NATIONAL BANK
By:________________________________________
Name:______________________________________
Title:_____________________________________
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
___________, 19__
Norwest Bank Minnesota, National Association
1015 10th Avenue S.E.
Minneapolis, Minnesota 55414
Attention: Corporate Trust Services (CMBS)
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass- Through Certificates, Series 1999-C1
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), by
and among Structured Asset Securities Corporation as depositor, First Union
National Bank as master servicer (the "Master Servicer"), the undersigned as
special servicer (the "Special Servicer"), and you as trustee (the "Trustee"),
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Property Name:
Address:
Control No.:
If only particular documents in the Mortgage File are requested, please
specify which:
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)
<PAGE>
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
<PAGE>
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
1. With respect to any Mortgaged Property, "Net Operating Income" or "NOI"
shall mean for each fiscal year or portion thereof, the related Revenue
allocable to such period, less (i) the related Expenses allocable to such
period, and (ii) any related Reserves for such period.
With respect to any Mortgaged Property, "Revenue" shall mean, for
each fiscal year or portion thereof, all revenue derived by the related
Mortgagor arising from the Mortgaged Property, including, without limitation,
rental revenues (whether denominated as basic rent, additional rent, percentage
rent, escalation payments, electrical payments or otherwise) and other fees and
charges payable pursuant to leases or otherwise in connection with the Mortgaged
Property, and rent insurance proceeds; provided that Revenue shall not include
(a) insurance proceeds (other than proceeds of business interruption or other
similar insurance allocable to the applicable period) and condemnation awards
(other than awards arising from a temporary taking or the use and occupancy of
all or part of the applicable Mortgaged Property allocable to the applicable
period), or interest accrued on such proceeds or awards, (b) proceeds of any
financing, (c) proceeds of any sale, exchange or transfer of the Mortgaged
Property or any part thereof or interest therein, (d) capital contributions or
loans to the Mortgagor or an Affiliate of the Mortgagor, (e) any item of income
otherwise includible in Revenue but paid directly by any tenant to a Person
other than the Mortgagor except for real estate taxes paid directly to any
taxing authority by any tenant, (f) any other extraordinary, non-recurring
revenues, (g) rent paid by or on behalf of any lessee under a space lease which
is the subject of any proceeding or action relating to its bankruptcy,
reorganization or other arrangement pursuant to federal bankruptcy law or any
similar federal or state law or which has been adjudicated a bankrupt or
insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof; and provided, further, that Revenue shall be adjusted
to account for vacancies and credit losses as and to the extent contemplated in
the Prospectus Supplement dated May 26, 1999 relating to LB Commercial Mortgage
Trust 1999-C1, Commercial Mortgage Pass-Through Certificates, Series 1999-C1.
With respect to any Mortgaged Property, "Expenses" shall mean, for
each fiscal year or portion thereof, all expenses directly attributable to the
operation, repair and/or maintenance of the Mortgaged Property, including,
without limitation, tenant improvement costs, leasing commissions, impositions,
insurance premiums, real estate taxes, management fees, advertising, payments to
third party suppliers, and costs attributable to the operation, repair and
maintenance of the systems for heating, ventilating and air conditioning, and
(except in the case of real estate taxes) actually paid for by the Mortgagor;
provided that (a) Expenses shall not
<PAGE>
include any of the foregoing items for which Reserves had been escrowed, which
Reserves had been taken into account in calculating the NOI for such period or
any prior period and (b) Expenses shall not include interest, principal and
premium, if any, due under the Mortgage Note or otherwise in connection with any
other secured indebtedness, income taxes, extraordinary capital improvements
costs, or any non-cash charge or expense such as depreciation.
Revenues and Expenses shall be calculated based on financial
statements, Mortgagor tax returns and/or rent rolls, in each case to the extent
appropriate and consistent with the Servicing Standard.
With respect to any Mortgaged Property, "Reserves" shall mean, for
each fiscal year or portion thereof, all replacement reserves and/or reserves
for tenant improvements and leasing commissions escrowed during such period.
2. With respect to any Mortgaged Property "Debt Service Coverage Ratio"
shall mean, for each fiscal year or portion (not less than three months)
thereof, without regard to any cross- collateralization feature of the related
Mortgage Loan, the ratio of (x) the Net Operating Income (before payment of any
debt service on the related Mortgage Loan) generated by such Mortgaged Property
(such Net Operating Income to be annualized if the relevant period is less than
twelve months) to (y) the product of the amount of the Monthly Payment in effect
for such Mortgage Loan as of any date of determination, multiplied by 12.
<PAGE>
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 19__
Norwest Bank Minnesota, National Association
Norwest Center
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, Class __, [having
an initial aggregate Certificate Principal Balance as of June
10, 1999 (the "Closing Date") of $__________] [representing a
___% Percentage Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________ (the "Transferor") to _____________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 1999, among
Structured Asset Securities Corporation, as Depositor, First Union National
Bank, as Master Servicer, GMAC Commercial Mortgage Corporation, as Special
Servicer, and Norwest Bank Minnesota, National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any
<PAGE>
interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest
in a Transferred Certificate or any other similar security from any person
in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in
a Transferred Certificate or any other similar security by means of
general advertising or in any other manner, or (e) taken any other action
with respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security, which (in the case of any of
the acts described in clauses (a) through (e) hereof) would constitute a
distribution of the Transferred Certificates under the Securities Act of
1933, as amended (the "Securities Act"), would render the disposition of
the Transferred Certificates a violation of Section 5 of the Securities
Act or any state securities laws, or would require registration or
qualification of the Transferred Certificates pursuant to the Securities
Act or any state securities laws.
Very truly yours,
(Transferor)
By:
Name:
Title:
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 19__
Norwest Bank Minnesota, National Association
Norwest Center
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, Class__, [having an
initial aggregate Certificate Principal Balance as of June 10,
1999 (the "Closing Date") of $__________] [representing a ___%
Percentage Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________ (the "Transferor") to _____________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 1999, among
Structured Asset Securities Corporation, as Depositor, First Union National
Bank, as Master Servicer, GMAC Commercial Mortgage Corporation, as Special
Servicer, and Norwest Bank Minnesota, National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the Securities Act.
<PAGE>
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
(Transferee)
By:
Name:
Title:
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
(Nominee)
By:
Name:
Title:
<PAGE>
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of such entity's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or
- --------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
<PAGE>
territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
<PAGE>
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto
<PAGE>
in the Pooling and Servicing Agreement pursuant to which the Transferred
Certificates were issued.
Print Name of Transferee
By:
Name:
Title:
Date:
<PAGE>
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities
<PAGE>
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:
Name:
<PAGE>
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 19__
Norwest Bank Minnesota, National Association
Norwest Center
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services Group (CMBS)
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, Class __, [having
an initial aggregate Certificate Principal Balance as of June
10, 1999 (the "Closing Date") of $__________] [representing a
___% Percentage Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________ (the "Transferor") to _____________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 1999, among
Structured Asset Securities Corporation, as Depositor, First Union National
Bank, as Master Servicer, GMAC Commercial Mortgage Corporation, as Special
Servicer, and Norwest Bank Minnesota, National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered
<PAGE>
pursuant to the Securities Act and registered or qualified pursuant to any
applicable state securities laws or (ii) sold or transferred in a transaction
which is exempt from such registration and qualification and the Certificate
Registrar has received (A) a certificate from the prospective transferor
substantially in the form attached as Exhibit F-1 to the Pooling and Servicing
Agreement and a certificate from the prospective transferee substantially in the
form attached either as Exhibit F-2A or Exhibit F-2B to the Pooling and
Servicing Agreement, or (B) an Opinion of Counsel satisfactory to the
Certificate Registrar that the transfer may be made without registration under
the Securities Act, together with the written certification(s) as to the facts
surrounding the transfer from the prospective transferor and/or prospective
transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION
AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to
<PAGE>
buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security with any person in any manner, (d)
made any general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, that (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The Transferee
will not act, nor has it authorized nor will it authorize any person to act, in
any manner set forth in the foregoing sentence with respect to the Transferred
Certificates, any interest in the Transferred Certificates or any other similar
security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
(Transferee)
By:
Name:
Title:
Date:
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
(Nominee)
By:
Name:
Title:
<PAGE>
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY NON-REGISTERED CERTIFICATES
____________, 19__
[TRANSFEROR]
Re: LB Commercial Mortgage Trust, Commercial Mortgage Pass-
Through Certificates, Series 1999-C1, Class __, [having an
initial aggregate Certificate Principal Balance as of June 10,
1999 (the "Closing Date") of $__________] [representing a ___%
Percentage Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _____________________________________
(the "Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Corporation ("DTC") and the Depository
Participants) in the captioned Certificates (the "Transferred Certificates"),
which were issued pursuant to the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1999, among Structured Asset
Securities Corporation, as Depositor, First Union National Bank, as Master
Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer, and Norwest
Bank Minnesota, National Association, as Trustee. All capitalized terms used but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to and agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act") and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it of the Transferor's
interest in the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring such interest in the Transferred Certificates for
its own account or for the account of another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable
<PAGE>
state securities laws, (b) none of the Depositor, the Trustee or the Certificate
Registrar is obligated so to register or qualify the Transferred Certificates
and (c) no interest in the Transferred Certificates may be resold or transferred
unless (i) such Certificates are registered pursuant to the Securities Act and
registered or qualified pursuant any applicable state securities laws, or (ii)
such interest is sold or transferred in a transaction which is exempt from such
registration and qualification and the Certificate Owner desiring to effect such
transfer has received (A) a certificate from such Certificate Owner's
prospective transferee substantially in the form attached either as Exhibit F-2C
or as Exhibit F-2D to the Pooling and Servicing Agreement or (B) an opinion of
counsel to the effect that such transfer may be made without registration under
the Securities Act.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates or any interest therein except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
<PAGE>
Very truly yours,
(Transferee)
By:
Name:
Title:
<PAGE>
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and for the benefit of Structured Asset Securities Corporation
with respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $_____________________(1) in securities
(other than the excluded securities referred to below) as of the end of such
entity's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the
- --------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
<PAGE>
Transferred Certificates in the case of a U.S. bank, and not more
than 18 months preceding such date of sale in the case of a foreign
bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of
<PAGE>
issuers that are affiliated with such Person, (ii) securities that are part of
an unsold allotment to or subscription by such Person, if such Person is a
dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
<PAGE>
Print Name of Transferee
By:
Name:
Title:
Date:
<PAGE>
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Structured Asset Securities
Corporation with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The terms "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:
Name:
Title:
IF AN ADVISER:
<PAGE>
Print Name of Transferee
Date:
<PAGE>
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY NON-REGISTERED
CERTIFICATES
____________, 19__
[TRANSFEROR]
Re: LB Commercial Mortgage Trust, Commercial Mortgage Pass-
Through Certificates, Series 1999-C1, Class __, [having an
initial aggregate Certificate Principal Balance as of June 10,
1999 (the "Closing Date") of $__________] [representing a ___%
Percentage Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _____________________________________
(the "Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Corporation ("DTC") and the Depository
Participants) in the captioned Certificates (the "Transferred Certificates"),
which were issued pursuant to the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1999, among Structured Asset
Securities Corporation, as Depositor, First Union National Bank, as Master
Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer, and Norwest
Bank Minnesota, National Association, as Trustee. All capitalized terms used but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to and agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is acquiring the Transferor's beneficial ownership
interest in the Transferred Certificates for its own account for investment and
not with a view to or for sale or transfer in connection with any distribution
thereof, in whole or in part, in any manner which would violate the Securities
Act of 1933, as amended (the "Securities Act"), or any applicable state
securities laws.
2. The Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Transferred Certificates, and (c) no interest in the
<PAGE>
Transferred Certificates may be resold or transferred unless (i) such
Certificates are registered pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws, or (ii) such interest
is sold or transferred in a transaction which is exempt from such registration
and qualification and the Certificate Owner desiring to effect such transfer has
received (A) a certificate from such Certificate Owner's prospective transferee
substantially in the form attached either as Exhibit F-2C or as Exhibit F-2D to
the Pooling and Servicing Agreement or (B) an opinion of counsel to the effect
that such transfer may be made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates or any interest therein except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner,
<PAGE>
(c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
(Transferee)
By:
Name:
Title:
<PAGE>
EXHIBIT G-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of June 10, 1999 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of June 1, 1999, among Structured Asset
Securities Corporation, as depositor, First Union National Bank as master
servicer, GMAC Commercial Mortgage Corporation as special servicer and Norwest
Bank Minnesota, National Association, as trustee. All capitalized terms used but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you as Certificate Registrar, as follows (check the applicable
paragraph):
___ The Transferee (A) is not an employee benefit plan or other retirement
arrangement, including an individual retirement account or annuity, a
Keogh plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including, without
limitation, an insurance company general account, that is subject to ERISA
or the Code (each, a "Plan"), and (B) is not directly or indirectly
purchasing the Transferred Certificates on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or
<PAGE>
___ The Transferee is using funds from an insurance company general account to
acquire the Transferred Certificates, however, the purchase and holding of
such Certificates by such Person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under
Sections I and III of Prohibited Transaction Class Exemption 95-60.
Very truly yours,
(Transferee)
By:_______________________
Name:
Title:
<PAGE>
EXHIBIT G-2
FORM II OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class ___ Certificates [having an initial aggregate Certificate Principal
Balance as of June 10, 1999 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of June 1, 1999
(the "Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation, as depositor, First Union National Bank as master servicer, GMAC
Commercial Mortgage Corporation, as special servicer and Norwest Bank Minnesota,
National Association, as trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as follows (check the applicable paragraph):
___ The Transferee (A) is not an employee benefit plan or other retirement
arrangement, including an individual retirement account or annuity, a
Keogh plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including, without
limitation, an insurance company general account, that is subject to ERISA
or the Code (each, a "Plan"), and (B) is not directly or indirectly
purchasing an interest in the Transferred Certificates on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan;
___ The Transferee is using funds from an insurance company general account to
acquire an interest in the Transferred Certificates, however, the purchase
and holding of such interest by such Person is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the
Code under Sections I and III of Prohibited Transaction Class Exemption
95-60; or
<PAGE>
Very truly yours,
(Transferee)
By:_______________________
Name:
Title:
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of LB Commercial Mortgage Trust
1999-C1, Commercial Mortgage Pass-Through Certificates, Series 1999-C1, Class
[R-I] [R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Interest Certificates")), a ________________________ duly organized
and validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Interest Certificates, and (ii) is acquiring
the Residual Interest Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a "non-United States person";
provided that, if such Person is classified as a partnership under the Code,
such Person can only be a "Permitted Transferee" if all of its beneficial owners
are United States persons. (For this purpose, a "disqualified organization"
means (i) the United States or a possession thereof, any State or any political
subdivision thereof, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its activities
are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by any such governmental
unit), (ii) a foreign government, international organization, or any agency or
instrumentality of either of the foregoing, (iii) any organization (except
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), or (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code. The terms "United States", "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.)
<PAGE>
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Interest Certificates to "disqualified organizations"
under the Code that applies to all transfers of the Residual Interest
Certificates; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Interest
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Interest Certificates if at any time during the
taxable year of the pass-through entity a "disqualified organization" is the
record holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives.)
In addition, the Transferee is aware the Certificate Registrar will not register
any transfer of the Residual Interest Certificates to an entity classified as
partnership under the Code unless at the time of transfer, all the beneficial
owners of such entity are "United States persons".
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Interest Certificates by the Transferee
unless the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Interest Certificate will
only be owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Interest Certificates (in particular, clause (ii)(A) of
Section 5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificate to a Person other than the Transferee and clause (ii)(B) of
Section 5.02(d) which authorizes the Trustee to negotiate a mandatory
disposition of the Residual Interest Certificates, in either case, in the event
that the Transferee holds such Residual Interest Certificates in violation of
Section 5.02(d)); and the Transferee expressly agrees to be bound by and to
comply with such provisions.
<PAGE>
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Interest Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Interest Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Interest Certificates.
11. The Transferor will, in connection with any transfer that it
makes of the Residual Interest Certificates, deliver to the Certificate
Registrar a representation letter substantially in the form of Exhibit H-2 to
the Pooling and Servicing Agreement in which it will represent and warrant,
among other things, that it is not transferring the Residual Interest
Certificates to impede the assessment or collection of any tax and that it has
at the time of such transfer conducted a reasonable investigation of the
financial condition of the proposed Transferee (or its current beneficial owners
if such Transferee is classified as a partnership under the Code) as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied
the requirements of such provision.
12. The Transferee is a "United States person". A "United States
person" is a citizen or resident of the United States, a corporation, a
partnership or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof, or an estate whose income
from sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this day of __________, ____.
[NAME OF TRANSFEREE]
By:
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named ____________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ____________________ of the Transferee, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Transferee
Subscribed and sworn before me this ____ day of
_____________________, _____.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the _________ day of
___________, 19__.
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: Lehman Brothers Commercial Mortgage Trust 1999-C1, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Interest Certificates"). The
Certificates, including the Residual Interest Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of June 1, 1999 (the "Pooling
and Servicing Agreement"), among Structured Asset Securities Corporation, as
depositor, First Union National Bank as master servicer, GMAC Commercial
Mortgage Corporation, as special servicer and Norwest Bank Minnesota, National
Association, as trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Interest Certificates by the Transferor to the Transferee is or will be
to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or the
beneficial owners of the
<PAGE>
Transferee if it is classified as a partnership under the Code) as contemplated
by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Interest Certificates may not be respected for United States income
tax purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
_________________________________
(Transferor)
By: _____________________________
Name: ___________________________
Title: __________________________
<PAGE>
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Moody's Investors Service, Inc.
99 Church Street, 4th Floor
New York, New York 10007
Attention: Commercial Mortgage Surveillance
Duff & Phelps Credit Rating Co.
55 E. Monroe Street, Suite 3500
Chicago, Illinois 60603
Ladies and Gentlemen:
This notice is being delivered pursuant to [Section 6.09] [Section
7.01(d)] of the Pooling and Servicing Agreement, dated as of June 1, 1999 and
relating to LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 (the "Agreement"). Capitalized terms used but not
otherwise defined herein shall have respective meanings assigned to them in the
Agreement.
Notice is hereby given that the [6.09:Holders] [7.01(d): Holder] of
Certificates evidencing [6.09: a majority of the] [7.01(d): the most] Voting
Rights allocated to the Controlling Class [has] [have] designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will become
final if certain conditions are met and you deliver to _________________, the
trustee under the Agreement (the "Trustee"), written confirmation that if the
person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
<PAGE>
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:__________________________
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By: ________________________________
Name:
Title:
Date:
DUFF & PHELPS CREDIT RATING CO.
By: ________________________________
Name:
Title:
Date:
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
Pursuant to Section [6.09] [7.01(d)] of the Pooling and Servicing
Agreement, dated as of June 1, 1999, relating to LB Commercial Mortgage Trust
1999-C1, Commercial Mortgage Pass- Through Certificates, Series 1999-C1 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges that, as of the
date hereof, it is and shall be a party to the Agreement and bound thereby to
the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 3.24 of the Agreement, with the following
corrections with respect to type of entity and jurisdiction of organization:
____________________.
By:
Name:
Title:
<PAGE>
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
<PAGE>
SCHEDULE 1 to EXHIBIT J
This Schedule 1 is attached to and incorporated in a financing
statement pertaining to Structured Asset Securities Corporation as depositor
(referred to as the "Debtor" for the purpose of this financing statement only),
and Norwest Bank Minnesota, National Association as trustee for the holders of
the Debtor's Commercial Mortgage Pass-Through Certificates, Series 1999-C1
(referred to as the "Secured Party" for purposes of this financing statement
only), under that certain Pooling and Servicing Agreement, dated as of June 1,
1999 (the "Pooling and Servicing Agreement"), among the Debtor as depositor, the
Secured Party as trustee, First Union National Bank as master servicer (the
"Master Servicer"), and GMAC Commercial Mortgage Corporation as special servicer
(the "Special Servicer"), relating to the issuance of the Debtor's Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 (collectively, the "Series
1999-C1 Certificates"). Capitalized terms used herein and not defined shall have
the respective meanings given to them in the Pooling and Servicing Agreement.
The attached financing statement covers all of the Debtor's right
(including the power to convey title thereto), title and interest in and to the
Trust Fund created pursuant to the Pooling and Servicing Agreement, consisting
of the following:
(1) the mortgage loans (the "Mortgage Loans") listed on the Mortgage
Loan Schedule attached hereto as Exhibit A;
(2) the note or other evidence of indebtedness (the "Mortgage Note")
of the related borrower (the "Mortgagor") under each Mortgage Loan, the related
mortgage, deed of trust or other similar instrument securing such Mortgage Note
(the "Mortgage") and each other legal, credit and servicing document related to
such Mortgage Loan (collectively with the related Mortgage Note and Mortgage,
the "Mortgage Loan Documents");
(3) (a) the Custodial Account required to be maintained by the
Master Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Custodial Account, (c) the investments of
any such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(4) All REO Property acquired in respect of defaulted Mortgage
Loans;
(5) (a) the REO Account required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment,
<PAGE>
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(6) (a) the Servicing Account(s), Reserve Account(s) and the
Interest Reserve Account required to be maintained by the Master Servicer and/or
the Special Servicer pursuant to the Pooling and Servicing Agreement, (b) all
funds from time to time on deposit in the Servicing Account(s), Reserve
Account(s) and the Interest Reserve Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
(7) (a) the Collection Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Collection Account, (c) the investments of
any such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(8) All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be maintained
pursuant to the Mortgage Loan Documents and the Pooling and Servicing Agreement,
transferred to the Trust and to be serviced by the Master Servicer or Special
Servicer pursuant to the Pooling and Servicing Agreement;
(9) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(10) any and all income, payments, proceeds and products of any of
the foregoing.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF ALL THE DEBTOR'S RIGHT,
TITLE AND INTEREST IN, TO AND UNDER THE MORTGAGE LOANS, THE MORTGAGE NOTES, THE
RELATED MORTGAGES AND THE OTHER RELATED MORTGAGE LOAN DOCUMENTS EVIDENCED BY THE
SERIES 1999- C1 CERTIFICATES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN
INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, OR THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY WITH RESPECT TO THE MORTGAGE
LOANS OR IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE LOAN DOCUMENT. IN
ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND OTHER OBLIGATIONS
SHOULD NOT BE CONSTRUED AS A
<PAGE>
CONCLUSION THAT ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN
INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE
MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE
JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION
THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE
SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT
LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO
ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION. WITH RESPECT TO THE FOREGOING, THIS
FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
<PAGE>
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH
SUB-SERVICING AGREEMENTS ARE IN EFFECT OR BEING
NEGOTIATED AS OF THE CLOSING DATE
<PAGE>
Bloomfield Servicing Company, L.L.C.
Legg Mason Real Estate Services, Inc.
CFC Advisory Services Limited Partnership
Northland/Marquette Capital Group, Inc.
Laureate Realty Services, Inc.
Newport Mortgage Company, L.P.
<PAGE>
EXHIBIT L
FORM OF CSSA LOAN PERIODIC UPDATE FILE REPORT
<PAGE>
EXHIBIT M
FORM OF CSSA PROPERTY FILE REPORT
<PAGE>
Lehman Brothers,1999-C1
CSSA Property File As Of 01/11/99
<TABLE>
<CAPTION>
1 2 3 4 5 6 7 8
Tran ID Loan ID Prosup Other Prop ID Distrib Crossed Collateralized
Loan ID ID Date Loan Grouping Property Name Address
==========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 9 10 11 12 13 14 15 16 17
Tran ID Zip County Prop Year Year Net SF # of Units/Beds/Rooms
City State Code Type Code Built Renovated At Securitzn At Securitization
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 18 19 20 21 22 23 24 25
Tran ID Prop Alloc. % of Loan Current Current Alloc. Ground Other Escrow/ Most Recent Most Recent
Stat At Securitization Alloc. % Loan Amount Lease Reserve Balances Appraisal Date Appraisal Value
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 26
Tran ID Date Asset To
Be Resolved
===========================
<S> <C>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
1 2 27 28 29 30 31 32 33
Tran ID Loan ID Foreclosure REO Date Occ. % Occ. Date Date Lease % SF expire % SF expire
Date Rollover Review 1-12 mo. 13-24 mo.
=========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 34 35 36 37 38 39 40
Tran ID % SF expire % SF expire % SF expire Largest Tenant SF Largest 2nd Largest Tenant SF 2nd Largest
25-36 mo. 37-48 mo. 49-60 mo. Tenant Tenant
========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 41 42 43 44 45 46
Tran ID 3rd Largest Tenant SF 3rd Largest Fiscal Year Securization Finan. Revenue At Oper. Exp. At
Tenant End Month As of Date Securitization Securitization
=======================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 47 48 49 50 51 52 53
Tran ID NOI At DSCR At Appraisal Value Appraisal Date Physical Occup Date of Last Preceding FY
Securitization Securitization Securitization Securitization At Securitization Inspection Fin. as of Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
1 2 54 55 56 57 58 59 60
Tran ID Loan ID Preceding FY Preceding FY Preceding FY Preceding FY Preceding FY Preceding FY 2nd Preceding
Revenue Expenses NOI Debt Service DSCR Occupancy FY Fin as of Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 61 62 63 64 65 66 67
Tran ID 2nd Preceding 2nd Preceding 2nd Preceding 2nd Preceding 2nd Preceding 2nd Preceding Most Recent
FY Revenue FY Expenses FY NOI FY Debt Service FY DSCR FY Occup % FY Fin as of Date
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 68 69 70 71 72 73
Tran ID Most Recent Most Recent Most Recent Most Recent Most Recent Most Recent
FY Revenue FY Expenses FY NOI FY Debt Service FY DSCR FY Occup. %
=================================================================================================
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT N
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
<PAGE>
Lehman Brothers 1999-C1
COMPARATIVE FINANCIAL STATUS REP0RT
AS OF
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Original Underwriting Information
Information
Basis Year
- ------------------------------------------------------------------------------------------------------------------------------------
Pro Last
Sup Property Scheduled Paid Annual Financial
Loan Inspect Loan Thru Debt Info as of % Total (1)
# City ST Date Balance Date Service Date Occ Revenue $ NOI DSCR
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
List all loans currently in deal with or without information largest to smallest loan
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Total: $ $ WA $ $ WA
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
RECEIVED
- ------------------------------------------------------------------------------------------------------------------------------------
Financial Information: Loans Balance
- ------------------------------------------------------------------------------------------------------------------------------------
# % $ %
- ------------------------------------------------------------------------------------------------------------------------------------
Current Full Year:
- ------------------------------------------------------------------------------------------------------------------------------------
Current Full Yr. Received with DSC < 1:
- ------------------------------------------------------------------------------------------------------------------------------------
Prior full Year:
- ------------------------------------------------------------------------------------------------------------------------------------
Prior Full Yr. Received with DSC < 1:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally calculated using
NOI/Debt Service
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Net change should compare the latest year to the underwriting year
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
2nd Preceding Annual Operating
Information
As of Normalized
- ---------------------------------------------------------------------------------------------------------
Pro Last
Sup Property Financial
Loan Inspect Info as of % Total Normalized (1)
# City ST Date Date Occ Revenue $ NOI DSCR
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Total: WA $ $ WA
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
REQUIRED
- ---------------------------------------------------------------------------------------------------------
Financial Information: Loans Balance
- ---------------------------------------------------------------------------------------------------------
# % $ %
- ---------------------------------------------------------------------------------------------------------
Current Full Year:
- ---------------------------------------------------------------------------------------------------------
Current Full Yr. Received with DSC < 1:
- ---------------------------------------------------------------------------------------------------------
Prior full Year:
- ---------------------------------------------------------------------------------------------------------
Prior Full Yr. Received with DSC < 1:
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Preceding Annual Operating
Information
As of Normalized
- -----------------------------------------------------------------------------------------------------------------
Pro Last
Sup Property Financial
Loan Inspect Info as of % Total Normalized (1)
# City ST Date Date Occ Revenue $ NOI DSCR
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
Total: WA $ $ WA
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
Financial Information:
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
Current Full Year:
- -----------------------------------------------------------------------------------------------------------------
Current Full Yr. Received with DSC < 1:
- -----------------------------------------------------------------------------------------------------------------
Prior full Year:
- -----------------------------------------------------------------------------------------------------------------
Prior Full Yr. Received with DSC < 1:
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Trailing Financial
Information (2) Net Change
Month Reported - Normalized Preceding & Basis
- ---------------------------------------------------------------------------------------------------------------------------------
Pro
Sup Financial % %
Loan Info as of % Total % % Total (1)
# City ST Date Occ Revenue $ NOI DSCR Occ Rev DSCR
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Total: WA $ $ WA WA $ WA
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Financial Information:
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Current Full Year:
- ---------------------------------------------------------------------------------------------------------------------------------
Current Full Yr. Received with DSC < 1:
- ---------------------------------------------------------------------------------------------------------------------------------
Prior full Year:
- ---------------------------------------------------------------------------------------------------------------------------------
Prior Full Yr. Received with DSC < 1:
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT O
FORM OF REO STATUS REPORT
<PAGE>
Lehman Brothers 1999-C1
REO STATUS REPORT
AS OF
<TABLE>
<CAPTION>
====================================================================================================================================
Total Other
Sq Ft Paid Scheduled P&I Total Advances Curent
Prospectus Property Property or Thru Loan Advances Expenses (Taxes & Total Monthly Maturity
ID Name Type City State Units Date Balance To Date To Date Escrow) Exposure P&I Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
====================================================================================================================================
Value Loss
Cap using Appraisal using Total
LTM LTM Rate NOI & BPO or 92% Estimated Appraisal REO Pending
Prospectus NOI NOI/ Asign Valuation Cap Internal Appr. Recovery Reduction Transfer Acquisition Resolution
ID Date DSC *** Date Rate Value** Or BPO % Realized Date Date Date Comments
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) USE THE FOLLOWING CODES; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
<PAGE>
EXHIBIT P
FORM OF WATCH LIST REPORT
<PAGE>
Lehman Brothers 1999-C1
SERVICER WATCH LIST
AS OF
<TABLE>
<CAPTION>
================================================================================================================================
PROSUP PROPERTY CURRENT PAID LTM*
LOAN SHORT PROPERTY SCHEDULED THRU MATURITY CURRENT
NUMBER NAME TYPE CITY STATE BALANCE DATE DATE DSCR COMMENT / REASON ON WATCH LIST
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
TOTAL: $0.00
================================================================================================================================
</TABLE>
* LTM - Last 12 months either trailing or last annual
<PAGE>
EXHIBIT Q
FORM OF DELINQUENT LOAN STATUS REPORT
<PAGE>
Lehman Brothers 1999-C1
DELINQUENT LOAN STATUS REPORT
AS OF:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Other
Short Total P&I Total Advances
Prospectus Name (When Property Sq Ft Paid Thru Scheduled Advances To Expenses (Taxes & Total
ID Appropriate) Type City State or Units Date Loan Balance Date To Date Escrow) Exposure
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Appraisal
Short Current Current BPO or
Prospectus Name (When Property Monthly Interest Maturity LTM NOI Valuation Internal
ID Appropriate) Type P&I Rate Date Date LTM NOI LTM DSCR Value Date Value**
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Short Loss using Expected
Prospectus Name (When Property 92% Appr. Estimated Transfer Closing Date NOI FCL Sale Workout
ID Appropriate) Type or BPO (f) Recovery % Date Date Filed Date Strategy Comments
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
*Workout Strategy should match the CSSA Loan file using abreviated words in
place of a code number such as (FCL - In Foreclosure, MOD - Modification, DPO -
Discount Payoff, NS - Note Sale, BK - Bankrupcy, PP - Payment Plan, TBD - To Be
Determined etc...)
It is possible to combine the status codes if the loan is going in more than one
direction. (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO)
**App - Appraisal, BPO - Broker opinion, Int. - Internal Value
<PAGE>
EXHIBIT R
FORM OF HISTORICAL LOAN MODIFICATION REPORT
<PAGE>
- --------------------------------------------------------------------------------
Lehman Brothers 1999-C1
HISTORICAL LOAN MODIFICATION REPORT
AS OF
================================================================================
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Balance Balance at
When the
Mod / Sent to Effective # Mths
Prospectus Extention Effect Speical Date of Old for Rate New Old
ID City State Flag Date Servicer Rehabilitation Rate Change Rate P&I
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
===========================================================================================================================
Total For All:
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
Total For Loans in Current Month:
- ---------------------------------------------------------------------------------------------------------------------------
# of Loans $ Balance
- ---------------------------------------------------------------------------------------------------------------------------
Modifications:
- ---------------------------------------------------------------------------------------------------------------------------
Maturity Date Extentions:
- ---------------------------------------------------------------------------------------------------------------------------
Total:
- -------------------------------------===============================================---------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should not change on this report once assigned.
- ---------------------------------------------------------------------------------------------------------------------------
(1) Actual principal loss taken by bonds
- ---------------------------------------------------------------------------------------------------------------------------
(2) Expected future loss due to a rate reduction. This is just an estimate calculated at the time of the modification.
- ---------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
(2) Est.
Future
Total # Interest
Mths (1) Loss to
for Realized Trust $
Prospectus New Old New Change Loss to (Rate
ID P&I Maturity Maturity of Mod Trust $ Reduction) COMMENT
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT S
FORM OF HISTORICAL LOSS ESTIMATE REPORT
<PAGE>
Lehman Brothers 1999-C1
HISTORICAL LOSS ESTIMATE REPORT
AS OF
<TABLE>
<CAPTION>
====================================================================================================================================
Latest
Short Name % Appraisal Effect Net Amt Total
Prospectus (When Property Received or Brokers Date Sales Received Scheduled P&I
ID Appropriate) Type City State From Sale Opinion of Sale Price from Sale Balance Advanced
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Total all Loans:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
====================================================================================================================================
Servicing Date Minor Total Loss Loss % of
Prospectus Total Fees Net Actual Losses Date Loss Minor Adj Adj Passed with Scheduled
ID Expenses Expense Proceeds Passed thru Passed thru to Trust thru Adjustment Balance
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Total all Loans:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT T
FORM OF NOI ADJUSTMENT WORKSHEET
<PAGE>
LB 1999-C1
Form of NOI ADJUSTMENT WORKSHEET for "year"
As Of
----------
Property Overview
----------------------------
Control Number
-----------------------------------------------
Current Balance/Paid to Date
-----------------------------------------------
Property Name
-----------------------------------------------
Property Type
-----------------------------------------------
Property Address, City, State
-----------------------------------------------
Net Rentable Square Feet
----------
Year Built/Year Renovated
----------------------------
Year of Operations Borrower Adjustment Normalized
--------------------------------------------
Occupancy Rate *
--------------------------------------------
Average Rental Rate
--------------------------------------------
* Occupancy rates are year end or the ending
date of the financial statement for the
period.
Income:
Number of Mos. "Year"
--------------------------------------------
Period ended Borrower Adjustment Normalized
Statement Classification Actual
--------------------------------------------
Rental Income (Category 1)
--------------------------------------------
Rental Income (Category 2)
--------------------------------------------
Rental Income (Category 3)
--------------------------------------------
Pass Through/Escalations
--------------------------------------------
Other Income
--------------------------------------------
--------------------------------------------
Effective Gross Income $ -- $ -- $ --
--------------------------------------------
Normalized - Full year Financial statements
have been reviewed by the servicer
Operating Expenses:
--------------------------------------------
Real Estate Taxes
--------------------------------------------
Property Insurance
--------------------------------------------
Utilities
--------------------------------------------
Genereal & Admin
--------------------------------------------
Repairs & Maintenance
--------------------------------------------
Management Fees
--------------------------------------------
Payroll and Benefits Expense
--------------------------------------------
Advertising & Marketing
--------------------------------------------
Professional Fees
--------------------------------------------
Other Expenses
--------------------------------------------
Ground Rent
--------------------------------------------
Total Operating Expenses $ -- $ -- $ --
--------------------------------------------
--------------------------------------------
Operating Expense Ratio
--------------------------------------------
--------------------------------------------
Net Operating Income $ -- $ -- $ --
--------------------------------------------
--------------------------------------------
Leasing Commisions
--------------------------------------------
Tenant Improvements
--------------------------------------------
Replacement Reserve
--------------------------------------------
Total Capital Items $ -- $ -- $ --
--------------------------------------------
--------------------------------------------
NOI After Capital Items $ -- $ -- $ --
--------------------------------------------
--------------------------------------------
Debt Service (per servicer) $ -- $ -- $ --
--------------------------------------------
Cash Flow after Debt Service $ -- $ -- $ --
--------------------------------------------
--------------------------------------------
(1) DSCR: (NOI/Debt Service)
--------------------------------------------
--------------------------------------------
DSCR: (after reserves\Cap exp)
--------------------------------------------
--------------------------------------------
Source of Financial Data:
--------------------------------------------
(i.e. operating statements, financial
statements, tax return, other)
Notes and Assumptions:
================================================================================
This report should be completed by the Servicer for any "Normalization" of the
Borrower's numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way
information may vary in each borrower's statement.
Income: Comments
Expense: Comments
Capital Items: Comments
(1) Used in the comparative Financial Status Report
<PAGE>
EXHIBIT U
FORM OF OPERATING STATEMENT ANALYSIS
<PAGE>
LB 1999-C1
Form of OPERATING STATEMENT ANALYSIS REPORT
As Of
<TABLE>
<S> <C> <C> <C> <C> <C>
-----------
Property Overview
-----------------------
Control Number
----------------------------------------------------------------------------------------------------
Current Balance/Paid to Date
----------------------------------------------------------------------------------------------------
Property Name
----------------------------------------------------------------------------------------------------
Property Type
----------------------------------------------------------------------------------------------------
Property Address, City, State
----------------------------------------------------------------------------------------------------
Net Rentable Square Feet
-----------
Year Built/Year Renovated
-----------------------
Year of Operations Underwriting 1994 1995 1996 Trailing
--------------------------------------------------
Occupancy Rate *
--------------------------------------------------
Average Rental Rate
--------------------------------------------------
* Occupancy rates are year end or the ending date of the financial statement for the period.
<CAPTION>
Income: No. of Mos.
-------------
Number of Mos. Prior Yr Curr Yr
---------------------------------------------------------------------------------------------
Period ended Underwriting 1996 1997 1998 98 Trailing** 1997-Base 1997-1996
Statement Classification Base Line Normalized Normalized Normalized as of Variance Variance
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Rental Income (Category 1)
---------------------------------------------------------------------------------------------
Rental Income (Category 2)
---------------------------------------------------------------------------------------------
Rental Income (Category 3)
---------------------------------------------------------------------------------------------
Pass Through/Escalations
---------------------------------------------------------------------------------------------
Other Income
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Effective Gross Income $ -- $ -- $ -- $ -- $ -- % %
---------------------------------------------------------------------------------------------
Normalized - Full year Financial statements have been reviewed by the underwriter or servicer
** Servicer will not be expected to Normalize these YTD numbers
Operating Expenses:
---------------------------------------------------------------------------------------------
Real Estate Taxes
---------------------------------------------------------------------------------------------
Property Insurance
---------------------------------------------------------------------------------------------
Utilities
---------------------------------------------------------------------------------------------
Genereal & Admin
---------------------------------------------------------------------------------------------
Repairs & Maintenance
---------------------------------------------------------------------------------------------
Management Fees
---------------------------------------------------------------------------------------------
Payroll and Benefits Expense
---------------------------------------------------------------------------------------------
Advertising & Marketing
---------------------------------------------------------------------------------------------
Professional Fees
---------------------------------------------------------------------------------------------
Other Expenses
---------------------------------------------------------------------------------------------
Ground Rent
---------------------------------------------------------------------------------------------
Total Operating Expenses $ -- $ -- $ -- $ -- $ -- % %
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Operating Expense Ratio
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Net Operating Income $ -- $ -- $ -- $ -- $ --
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Leasing Commisions
---------------------------------------------------------------------------------------------
Tenant Improvements
---------------------------------------------------------------------------------------------
Replacement Reserve
---------------------------------------------------------------------------------------------
Total Capital Items $ -- $ -- $ -- $ -- $ --
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
NOI After Capital Items $ -- $ -- $ -- $ -- $ --
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Debt Service (per servicer) $ -- $ -- $ -- $ -- $ -- $ --
---------------------------------------------------------------------------------------------
Cash Flow after Debt Service $ -- $ -- $ -- $ -- $ -- $ --
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
(1) DSCR: (NOI/Debt Service)
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
DSCR: (after reserves\Cap exp)
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Source of Financial Data:
---------------------------------------------------------------------------------------------
(i.e. operating statements, financial statements, tax return, other)
</TABLE>
Notes and Assumptions:
================================================================================
The years shown above will roll always showing a three year history.
This report may vary depending on the property type and because of the way
information may vary in each borrower's statement.
Rental Income needs to be broken down, differently whenever possible for each
property type as follows, Retail: 1) Base Rent 2) percentage rents on cashflow
Hotel: 1) Room Revenue 2) Food/Beverage A34Nursing Home: 1) Private 2) Medicaid
3) Medicare
Income: Comments
Expense: Comments
Capital Items: Comments
(1) Used in the comparative Financial Status Report
<PAGE>
EXHIBIT V
FORM OF LOAN PAYOFF NOTIFICATION REPORT
<PAGE>
LB 1999-C1
Payoff Notification Report
As of
<TABLE>
<CAPTION>
====================================================================================================================================
S4 S55 S61 S58 P7 P8 P10 P11 P54 Servicer Estimated Information
Short Name Scheduled Paid Current Expected Expected
(When Property Loan Thru Interest Maturity LTM Yield Payment Distribution
Prospectus ID Appropriate) Type State Balance Date Rate Date DSCR Maintenance Date Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
Scheduled Payments
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Unscheduled Payments
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Total:
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT W-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION
FOR WEBSITE ACCESS FROM CERTIFICATE OWNER
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass-Though
Certificates, Series 1999-C1
In accordance with the provisions of the Pooling and Servicing Agreement,
dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), among
Structured Asset Securities Corporation, as depositor (the "Depositor"), First
Union National Bank, as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer and Norwest Bank Minnesota, National Association, as trustee
(the "Trustee"), with respect to LB Commercial Mortgage Trust 1999-C1,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class _____ Certificates.
2. The undersigned is requesting (Please check, as applicable):
(i) ____ the information (the "Information") identified on the
schedule attached hereto pursuant to Section 8.14 of the
Pooling and Servicing Agreement; or
(ii) ____ a password pursuant to Section 4.02 of the Pooling and
Servicing Agreement for access to information (also, the
"Information") provided on the Trustee's Internet Website.
3. In consideration of the Trustee's disclosure to the undersigned of
the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it
in evaluating its interest in Certificates, from its accountants
and attorneys, and otherwise from such governmental or banking
authorities to which the undersigned is subject),
<PAGE>
and such Information will not, without the prior written consent of
the Trustee, be disclosed by the undersigned or by its officers,
directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part; provided that the undersigned may provide all or
any part of the Information to any other person or entity that holds
or is contemplating the purchase of any Certificate or interest
therein, but only if such person or entity confirms in writing such
ownership interest or prospective ownership interest and agrees to
keep it confidential.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended, (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the
Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A
CERTIFICATE]
-------------------------
By: ______________________
Name: ____________________
Title: _____________________
<PAGE>
EXHIBIT W-2
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION
FOR WEBSITE ACCESS FROM PROSPECTIVE INVESTOR
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: LB Commercial Mortgage Trust 1999-C1, Commercial Mortgage Pass-Though
Certificates, Series 1999-C1
In accordance with the provisions of the Pooling and Servicing Agreement.
dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), among
Structured Asset Securities Corporation, as depositor (the "Depositor"), First
Union National Bank, as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer, and Norwest Bank Minnesota, National Association, as
trustee (the "Trustee"), with respect to LB Commercial Mortgage Trust 1999-C1,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class _____
Certificates.
2. The undersigned is requesting (please check as applicable):
(i) information (the "Information") for use in evaluating the
possible investment described above as identified on
the schedule attached hereto pursuant to Section 8.14
of the Pooling and Servicing Agreement,
(ii) a password pursuant to Section 4.02 of the Pooling and
Servicing Agreement for access to information (also,
the "Information") provided on the Trustee's Internet
Website.
3. In consideration of the Trustee's disclosure to the undersigned of
the Information, the undersigned will keep the Information
confidential (except from such outside person as are assisting it in
making the investment decision described in paragraph 1 above, from
its accountants and attorneys, and otherwise from such governmental
or banking authorities and agencies to which the undersigned is
subject), and such Information will not, without the prior written
consent of the Trustee, be disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part.
<PAGE>
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended ( the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the
Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER OF A
CERTIFICATE]
-------------------------
By: ______________________
Name: ____________________
Title: _____________________
<PAGE>
[GRAPHIC OMITTED]
